Politikon: IAPSS Political Science Journal Vol. Nr.20, June 2013

important to participate in the building of new ideas, to criticize the established order and Politikon: IAPSS Political Science Journal Vol. Nr.20, June 2013

Volume 20: June 2013

Academic year 2013-2014

Editor in Chief Rodrigo Vaz Catholic University of Portugal Portugal Editorial Board

Caitlin Bagby, USA King’s College, London, United Kingdom Péter Király, Hungary Central European University, Budapest, Hungary Andrijana Nikic, Montenegro University of Montenegro, Montenegro Reint-Jan Groot Nuelend, The Netherlands University of Nijmegen, Nijmegen, The Netherlands Vit Simral, Czech Republic IMT, Lucca, Italy / Charles University, Prague / Masaryk University, Brno, Czech Republic

Advisory Board Manuel Garreton, Chile,

João Carlos Espada, Portugal,

Carole Pateman, England,

Leonardo Morlino, Italy,

Phillippe Schmitter, USA

Content

Editorial Message...... 1 Rodrigo Vaz

Justice and Democracy in Amartya Sen: another procedural approach?...... 2 - 9 Antonio Puggioni

Feeding Truffles to Porcupines: Why the West consistently fails to export democracy and human rights...... 10 – 13 Jakub Tloka

Addressing Political Corruption In India: Fundamental To The Process Of Democratization...... 14 – 47 Pawan Kumar

Do Democratisation and Global Justice go hand in hand? The case of Timor- Leste...... 47 – 59 Carla Luís

The Impact of Foreign Aid on Human Rights Violations: Innocent Flower or the Serpent under it?...... 60 – 72 Natalie Sophie Cebulla

Responsibility To Protect: What For?: R2P And The Non-Intervention In Syria....73 – 80 Adelaida Rivera

Effects of Democratic Citizenship on Pursuing Global Justice: from the perspective of the post-Soviet Georgia...... 81 – 90 Mikhail Shavtvaladze

The Limits Of Kantianism Towards A Project Of Global Justice...... 91 – 98 Daniel Nunes Pereira

A Boundedly Rational Analysis of Global Distributive Justice...... 98 – 123 Alexandru Volacu and Iris Patricia Golopenta Criminalizing Rape Within Marriage: Recasting Indian Rape Law...... 124 – 148 Megha

Legislative Representation and Governability in Brazil: Does Brazilian Democracy Represent its Social Plurality?...... 149 – 173 Lívia de Souza Lima and Thiago Henrique Desenzi

Violence Against Native American Women in the United States...... 174 – 187 Jennifer Di Paolo Politikon:IAPSS Political Science Journal Vol. Nr.20, June 2013

Editorial Message

Dear Reader,

Let me start by welcoming you to yet another issue of POLITIKON. In this issue we publish the papers presented at our last Academic Conference in Rome, in March this year.

The topic of the Rome ACGA was devoted to Global Justice. The academic panels lengthily discussed this theme, mixing it with other equally interesting topics such as Democratization and Human Rights. Another positive aspect about the panels was the plurality of nationalities of the several panelists – from Colombia to India, from Georgia to Yemen, from Canada to Germany. This reveals the effort IAPSS is making towards the reinforcement of the international – and intercontinental - side of the association, leaving its heavily focus in Europe.

This issue marks the continuation of POLITIKON being released on a regular basis and the introduction of the new Editorial Board: Caitlin Bagby from the USA, Péter Király from Hungary, Andrijana Nikic from Montenegro, Reint-Jan Groot Nuelend from the Netherlands and Vit Simral from Czech Republic. I would like to take this opportunity to welcome them all aboard and say what a pleasure it will be work with them.

For now, I will leave you with the articles presented in Rome. The topics covered are very heterogeneous and diverse, and I am sure you will find many that suit your likes. Should you have any questions, please feel free to contact me directly at [email protected].

Enjoy,

Rodrigo Vaz

Editor in Chief

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Antonio Puggioni Justice and Democracy in Amartaya Sen: another procedural approach?

Justice and Democracy in Amartya Sen: another procedural approach?

Antonio PUGGIONI1, Institute for Advanced Studies, Italy

Abstract

he present paper aims at delivering a critical view of the links between justice and democracy as set by Amartya Sen’s paramount work on these themes, “The Idea of Justice”, by considering the constitutional and political experience of India. A central role will thus be given to the importance of T public discussion and reasoning as the basis of democratic thought throughout the world, as Sen postulates. Nevertheless, an analysis of the Indian constitutional process shows how the mere reliance on reason and justice is not sufficient for a successful democratic tradition: the role of liberal values and of the underlying institutional developments is indeed capital for a wider understanding of the democratization process of India. The intertwining of these two aspects, the former socio-philosophical, the latter institutional, will help in reviewing the Indian experience as a demonstration of the maintenance of traditions within a clear framework, and in further expanding the notion to other contexts.

1 Antonio Puggioni, 24, is a Ph.D. candidate in Institutions, Politics and Policies at the Institute for Advanced Studies in Lucca (Italy). He holds a BA in Political Sciences and International Relations (2009) and a MA in European Legal Studies (2011) from the University La Sapienza in Rome. He wrote both his BA and Master’s theses in Comparative Constitutional Law (the BA on the constitutional processes in Japan from the 1870s to the 1940s, the MA on linguistic rights in the Indian legal system). He is currently working on a research project on the legal and constitutional perspectives of the democratization processes in India and Burma, with a comparative approach.

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Introduction notion from actual accomplishments, that could be eventually ranked. This notion of he theme of justice gained justice is linked to democracy by association momentum again thanks to John with the method: as justice stems from an T Rawls’s paramount work A Theory of open and reason-based approach Justice and has so far been the object characterized by discussion, so is democracy of investigation of several authors (as defined in terms of public reasoning, with an Nozick), who generally followed the emphasis on informational availability and “contractarian” approach, in line with the possibility of choice. Although this tradition started with Hobbes, Locke and framework is indisputably correct for a Rousseau on the existence of a social philosophical analysis of the two concepts, contract. This new tendency towards studies the institutional and procedural characters of on justice, and especially on the related democracy could not be neglected. From a concept of fairness,2 has found in Amartya minimal procedural perspective, democracy Sen a major contribution, thanks to the could be conceived as “the institutional elaboration of a complete theory on arrangement for arriving at political decisions (…) reasoning and the public sphere. Sen’s in which individuals acquire the power to decide by approach reached a capital point for a more means of a competitive struggle for the people’s vote”, comprehensive understanding of the theme as Schumpeter defined the notion of justice with the links created between the (Schumpeter, 1942, 269). A broader reason-based idea of justice and the explanation is given by Sartori, according to relevance of democracy and of the whom democracy is “a system fictitiously based democratic process. In fact, the concepts of on the will of the majority, which is in fact produced justice and democracy are more deeply and safeguarded by the government of a minority”, analyzed in The Idea of Justice, where Sen thus presenting the elitist version of the explores these two inherently intertwined notion (Sartori, 1957, 96). What Sen notions with a view to a global proposes seems to be a sort of procedural understanding of the subject, deriving his conception of democracy as a method arguments from both the Western and the characterized by open discussion that could Oriental historical experiences. eventually lead to just or fair outcomes In order to investigate the thanks to the procedure itself. Despite the connection between justice and democracy, agreement on the relevance of the a proper definition of both notions will be dimension of the public sphere, is this the helpful for clarifying the limits of the correct path to understand the inherent link analysis. Justice could be intended, as Rawls between justice and democracy, and the does, as the “first virtue of social definition of democracy itself? institutions”, associated with fairness. The present analysis will be initially Nevertheless, while maintaining the self- devoted to the study of the question of evident link with fairness, Sen adds a more justice in Amartya Sen’s thought, through a feasible argument: instead of framing justice comparison with the contractarian tradition within an institutional scheme, he derives the lately embodied by Rawls. Then, the focus will switch to the notion of democracy, from

a general perspective to the links that Sen 2 Justice as Fairness is in fact the title of the establishes with the concept of justice. first article by John Rawls in 1958, and a key association developed in his work of 1973. Finally, the critical examination of the theory 3

Antonio Puggioni Justice and Democracy in Amartaya Sen: another procedural approach?

of justice and democracy will concentrate on order to pass from a state of nature to a just the role of institutions and of liberalism in society is the well-known “veil of the general framework of a democratic ignorance”: thanks to this original position theory. of restriction of knowledge concerning his place in society or his social status and also The ideas of justice his conception of the good (Rawls, 1973, In The Idea of Justice, Amartya Sen 112), a reasonable person could not but classifies the theories of justice according to choose a fair social contract. This two streams of philosophical reflection: the unanimous agreement will be based on two contractarian school and the comparative principles of justice: approach, both stemming from the First: each person is to have an equal right Enlightenment tradition. The former to the most extensive scheme of equal basic liberties category, including Rousseau and Rawls compatible with a similar scheme of liberties for among others, deals with the identification others. of the just institutional agreements for a Second: social and economic equalities are to society, with the purpose of finding the right be arranged so that they are both reasonably expected institutions that could ensure perfect justice; to be to everyone’s advantage, and attached to on the contrary, the latter concentrates on positions and offices open to all (Rawls, 1973, 52). an accomplishment-based view of justice, Thus, two pillars constitute the concept of taking into account the different possibilities justice: a liberty principle and a difference of reaching the goal of less injustice and principle, with the former having priority ranking the alternative choices (Sen, 2009, over the latter. After having selected these Introduction). principles, two further stages are provided: a Despite its main concentration on “constitutional” stage for choosing the establishment of just institutions, Rawls’s institutions, and a “legislative” stage to theory is fundamental in the understanding implement social decisions by means of of the entire question of justice. The laws. reasoned conclusions drawn by Rawls are As Sen notes, two elements in shared by Sen as well, acknowledging the Rawls’s theory of justice are capital: the use “firm footing” (Sen, 2009, 53) set by Rawls for of reason for the choice of the agreement the theory of justice. The starting point of and the importance of freedom. Both Rawls’s theory is the basic idea of justice elements underlie the existence of a public seen as a demand of fairness, following the sphere sufficient to reach conclusions by the traditional theory of the social contract. The use of reason and through discussion, which institutional question is thus at the core of is a common point with the comparative Rawls’s investigation: from a social contract approach (Rawls, 1973, 62-64). The equally agreed by everyone, just institutions difference lies in the content of the that satisfy shared principles of justice arise. “programme” and in the role of institutions: The idea of social contract is here developed while Rawls clearly states the content of the at a higher level: the aim of the act is a joint agreement in the “basic liberties” (political; decision over “the principles which are to assign of speech and assembly; of thought; of the basic rights and duties and to determine the division person; personal property and freedom from of social benefits” (Rawls, 1973, 10). The arbitrary arrest), Sen develops his own theoretical stratagem invented by Rawls in reasoning according to the concept of

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capabilities, which is more real but more broad understanding of democracy in his vague as well. This same argument of thought. capabilities, typical of Sen’s attention to actual achievements, leaves to the The quest for a comprehensive notion of background the question of institutions. democracy According to Sen, “just institutions” could In Amartya Sen’s academic not properly work if the actual behaviour is production, the relevance of open discussion not in line with the expected reasonable in the achievement of freedom is essential. behaviour. As in Rawls, the importance of freedom for In fact, the comparative approach the attainment of one’s objectives is at the neglects the role of institutions to focus on basis of his philosophical investigation. actual realizations. The theoretical device Nevertheless, the emphasized aspect is the employed by Sen is the “impartial spectator” fulfillment of “comprehensive outcomes”, as that Adam Smith used in his Theory of Moral in the Sanskrit notion of nyaya. In order to Sentiments, according to whom a comparative insert these considerations in the framework assessment of different options becomes of a comprehensive theory of justice and of possible through a variety of viewpoints. the link with democracy, the system This comparative view on justice is also presented by Sen relies on the capability developed from the traditional difference approach. between two concepts of justice in Sanskrit, What is meant by capability is a niti and nyaya: while the former term person’s “real opportunity (…) to do things he or identifies a procedural concept of justice, the she has reason to value” (Sen, 2009, 233): this latter encompasses the actual achievements, calls for the necessity of judging and the social realizations (Sen, 2009, comparing several individual advantages Introduction). Sen’s theory clearly aims at (what Sen calls “combinations of reaching nyaya by means of public reasoning functionings”) from an “informational and comparison of different possibilities. focus”. So, the idea of capability guarantees The typical example is delivered with the the actual possibility for people to freely illustration of the competing reasons for the choose, according to a comprehensive range property of a flute. Three children, of opportunities. An important feature of quarrelling for a flute, have good reasons for this approach is the use of reason and public owning the instrument: the first one because discussion, shared with the contractarian he is so poor that he has no toys; the second views of Rawls. Unlike him, though, Sen because he produced the flute; the third one opens the possibility for different solutions: because he can play it (Sen, 2009, 12-15). instead of a single social contract embodying The three alternatives are equally valid unanimous principles of justice, the according to a contractarian view, but from a approach based on social choice theory, here comparative approach they can be ranked proposed, aims at giving to each person the through public reasoning: the prevention of chance to find a way for reaching an actual manifest injustice will be the parameter used position of less injustice by means of free to assess the claims. Sen’s approach thus and open discussion (Sen, 2009, 225-252).3 gives an open perspective convenient to

impartially rank demands of justice. 3 This aspect is developed in Chapter XI of Moreover, this same concern for open The Idea of Justice, Lives, Freedoms and discussion links the concept of justice to the Capabilities. 5

Antonio Puggioni Justice and Democracy in Amartaya Sen: another procedural approach?

Despite the equal importance of primary discursive element of the concept, public reasoning in Rawls’s and Sen’s that always leads to the establishment of free theories, the results diverge not only in the alternatives, to nyaya-based solutions. The absence of a social contract, but also in the institutional elements of democracy, from relevance of equality. Indeed, Sen does not the Western tradition, and especially the claim the necessity of equality of capabilities, practice of elections, are thus given minor because the concept itself is related to attention, to leave space for the individual advantages, not to a general establishment of an open forum for dealing ordering (Sen, 2009, 295-298). Thus, the with tolerant values and priorities. Several priority of freedom is repeatedly stated, the examples are provided in order to support procedure of reaching freedom through this claim, all derived from the Indian public discussion is shared, but the experience since 1947: the prevention of outcomes are different for each person. This famines in democratic countries thanks to understanding of justice, equality and the attention of the media to natural and freedom leads to the comprehensive notion social disasters; the prevention of sectarian of democracy proposed by Amartya Sen. violence; the role of educational rights. Amartya Sen tries to elaborate a Notwithstanding the coherence of concept of democracy that is universally this approach and the evident results, the applicable to experiments of local inference that derives the success of government both in the Western and democracy only thanks to the discursive Eastern worlds. Indeed, the tendency for features seems overemphasized. In fact, public reasoning for the decision-making what Sen proposes is another procedural process is not a Western monopoly that notion of democracy, and not a content- started in Athens in the 5th century B.C., based approach: by means of the discursive since ancient India testifies of several method, that brings to the forefront experiences of local governance. What Sen reasoned claims for justice and reasoned regularly stresses is the “intimate connection solutions, just and democratic achievements between justice and democracy, with shared discursive can be reached, independently from the features” (Sen, 2009, 326). So, the character of institutional features of a society. Thus, it is open discussion is the capital element in the discursive method, that in itself should democracy, in contraposition with completely guarantee the rise and acceptance Schumpeter’s idea of a method for reaching of just decisions by impartially-reasoned decisions by means of a majority vote, but ranking of the alternatives, that defines the also of Sartori’s view, which poses at the concept of democracy. While the forefront the elitist idea of a government by philosophical derivation of this conception a minority supported by an initial majority is not questionable, is this view historically decision. consistent? Sen’s view of democracy is said to be content-based: by means of open discussion, Comprehensive and traditional notions through which a plurality of reasons can be of democracy compared, a just solution is to be found. If Amartya Sen’s view is correct, According to this view, the procedural and what about the fall of the Weimar Republic? institutional features of democracy look Wasn’t it one of the best examples of the secondary if compared with the inherently burgeoning of open discussion and of

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cultural vitality ever achieved? This mere new democratic experiences, in Asian example should be sufficient for countries especially, from the idea that Asian understanding that the role of institutions values are not compatible with democracy: should not be neglected in the study of an idea promoted in the 1990s by Mahatir democracy. A democracy that does not Mohamad and Lee Kwan Yew, the Prime defend itself4 by means of institutional Ministers of Malaysia and Singapore, in devices is deemed to failure sooner or later, order to justify the authoritarian regimes in because the protection of minorities and of South-East Asia. human rights and freedoms, which are at the The claim for the universality of the basis of the concept itself, must be value and method of public reasoning and supported by some protective framework. discussion is undisputable. Nevertheless, the Weimar Germany was an example of public historical experience shows that from the discussion without public reasoning, 19th century onward the only institutional especially towards the end of the democratic system that could sustain the value of public period, but the existence of public reasoning discussion and at the same time guarantee is not to be taken for granted, as Amartya peaceful coexistence has been the liberal- Sen seems to do. Least of all should it be democratic framework as designed by the considered for building a complete system Western tradition. What Sen correctly points of thought, regardless of previous out is the fact that the seeds of democracy, experiences. meant as government allowing discussion Trust on human capacities and on and just decisions, are present in each the use of reason is certainly the ground for society and in each human context. Sen’s understanding of the notion of However, the method of open discussion is democracy. Nobody denies that, and nobody not sufficient to define democracy, because could speculate about the supposed Western it is only the prerequisite for the monopoly of reasoned discussion: the establishment of a democratic system: it is a historical examples provided by Sen suffice procedural feature that is deprived of to deny the conception of decision-making content. The issue is not about installing just by open discussion as purely Western, and institutions, as Rawls indicates in line with the experience of the Indian democracy after the contractarian theory: the real problem 1947 is there as a proof of the universal concerns the association of institutions that relevance of the democratic values. But the embody a certain idea of liberty and of confusion between values and the notion protection of minorities, and that help itself is misleading. Sen tries to defend the guaranteeing it by the discursive method, with the eventual accomplishment of actual

progress in justice. 4 The concept of defence is introduced with The two aspects are strictly linked: a view to the parallel of the two democratic experiences of Germany: the Weimar the respect of democratic values does not Republic from 1919 to 1933 and the re- arise by itself by means of discussion. The democratization of 1949 with the new respect of individual rights and freedoms is Grundgesetz. This new constitution the essence of a democracy: Sen established a system of institutional clauses acknowledges this view by giving priority to aimed at preventing a return to freedom, but then leaves to the “unknown” authoritarianism that allows to define it as a forces of human reason the task of wehrhafte Demokratie, a democracy that defends itself, a fortified democracy. supporting this priority. But a blind trust on 7

Antonio Puggioni Justice and Democracy in Amartaya Sen: another procedural approach?

human reason is not a reasonable point of departure: the framework for decisions is Open conclusions: liberalism and itself important. The idea of democracy is traditional values characterized by a plurality of elements, This short study on the concepts of whose basis is the possibility of open justice and democracy has tried to present a discussion, as Sen emphasizes, but this is not critical view of the currently most acclaimed an exhaustive definition. theory of justice as linked with universal Besides the precondition of public democratic thought. By the analysis of discussion, another procedural element lies Amartya Sen’s The Idea of Justice, some points in the participation in the government by an of discussion arise about the necessity of elected minority: government by the people eliminating the institutional element in the is the characteristic of the concept, and the concept of democracy so as to universalize etymology of the word states this evidence. the notion. While a common ground seems According to Hans Kelsen, this procedural to be found in the definition of justice and component is the essence, “the liberal element in the link of the philosophical notion with being of secondary importance” (Kelsen, 1955, 4). the concept of democracy, the definition of But the rule of the majority, the procedural the latter is still a matter of dispute. The framework, must be supported by a content, mere definition of democracy as public and this content lies in an agreement (a reasoning is clearly insufficient, because it social contract?) on the values to be lacks the empirical basis, which is given by protected, promoted and embodied by the the institutions derived by the Western institutional system. The values of freedom tradition. Thus, a notion of democracy, to be and of justice seem to gather a secure considered sufficient to respond to the agreement from the representatives of both aspiration of people in both a demand for the contractarian and the comparative justice and freedom and a way to guarantee approaches. this demand, must be related to content and The comprehensive notion of method. democracy thus encompasses three aspects: The case of India is of high two procedural elements, the government by significance in showing this evidence. The discussion and by majority rule; and a Constitution of India was framed between content-related feature, the protection of 1947 and 1949 by men who at the same time freedoms and the promotion of justice. The possessed both the lessons of liberalism and embodiment of these three elements has the awareness of the Indian tradition of been so far guaranteed only by the discussion. Nevertheless, the result was a institutional system derived by the liberal text that derives its features from the liberal tradition: the successful implant of Western thought, as Bhimrao Ambedkar, the Chair of liberal institutions in contexts alien to the the Drafting Committee, admitted in liberal experience shows how this type of contrast with the ecumenical views institutions are able to universally serve purported by Gandhi and his “Republic of societies in which the precondition of public Panchayats” (villages). A traditional system, as discussion is already present, but miss the supported by Gandhi, could never have organizational structure necessary for dealing come into being, because of the necessity of with today’s world challenges. having a functioning state. But the seeds of democratic thought were present, and the

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fact that the Indian democracy still survives Sen, A. (2009), The Idea of Justice. Cambridge: today is an evidence of the success reached Harvard University Press. by allying public discussion with institutions Singh, M.P. (2006), Outlines of Indian Legal and protecting individual freedoms at a broader Constitutional History. Delhi: Universal Law level, ensuring at the same time the Publishing Co. Pvt. Ltd., 8th Edition. participation of the popular will to the decisions. Social realizations, actual advancement of justice intended as nyaya, seem to be possible nowadays only through a democratic system in which institutions play a role.

References

Austin, G. (1966), The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press.

Guha, R. (2007), India after Gandhi: The History of the World’s Largest Democracy. Kelsen, H. (1955), Foundations of Democracy, Ethics, Vol. 66, No.1, Part 2 (Oct. 1955).

Morlino, L. (2008), Democracy and Changes: How Research Tails Reality, West European Politics, Vol. 31, Nos. 1-2, 40-59, January- March 2008.

Morlino, L. (2011), Changes for Democracy: Actors, Structures, Processes. Oxford: Oxford University Press.

Nariman, F.S. (2006), India’s Legal System: Can It Be Saved?. New Delhi, Penguin Books India.

Rawls, J. (1973), A Theory of Justice. Cambridge: Harvard University Press.

Sartori, G. (1957), Democrazia e Definizioni. Bologna: Il Mulino.

Schumpeter, J.A. (1942), Capitalism, Socialism and Democracy. London and New York: Routledge.

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Jakub Tloka Feeding Truffles to Porcupines

Feeding Truffles to Porcupines: Why the West consistently fails to export democracy and human rights

Jakub TLOKA1, Bratislava International School of Liberal Arts, Slovakia

Abstract

raditionally, the West has promoted the commendable cause of human rights because it was here that its contours were eloquently outlined by the champions of early liberalism. We uphold the western societal model because it results from our cumulative efforts to introduce into practice the noble T standards conceptualised by John Locke, Thomas Hobbes, Thomas Paine, and other influential contractualists. Naturally, we are eager to share its fruits with the world. However, in the process of attempting to export western values we tend to disregard completely the fact that they took centuries to solidify into their present form. Furthermore, we fail to take into account the political and cultural climates which facilitated the advent of democracy and human rights. Further still, although our eagerness to market the products of our civilisation borders on intrusive advertising, we are yet to appreciate completely the qualities they entail. In this paper I shall argue that, in spite of being established theoretical concepts, from a practical perspective, democracy and human rights are novelties. I shall argue that the sociocultural evolutionary process cannot be expedited; that historically, piecemeal reform has taken pragmatic precedence over political adventurism. I shall argue that insofar as the West continues to recklessly impose its cultural ethos upon exotic civilisations, the ideals it espouses will become utterly devoid of authenticity.

1 Jakub Tloka, 24, is currently reading a BA in Political Science at BISLA (Bratislava International School of Liberal Arts), Slovakia.

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he past century bore the marks of The Universal Declaration of Human enmity, oppression and belligerence. Rights, Article 2 of which states that It witnessed two appallingly '[e]veryone is entitled to all the rights and T devastating conflicts which many freedoms set forth in this Declaration, had previously thought unfathomable. The without distinction of any kind, such as race, great nations whence came numerous colour, sex . . . or other status' (p. 535). Of forefathers of democracy approached the these rights and freedoms, consider verge of positively obliterating their everyone's 'right to take part in the nationals' constructive efforts. Merely two government of his country, directly or decades had passed since the collapse of through freely chosen representatives . . . European imperialism when the right of equal access to public service in his preservation of civilised values came into country . . . [right to] genuine elections competition during an unprecedented which shall be by universal and equal attempt to institute a global hegemony. suffrage' (Article 21). These and other Following years of extraordinary hostilities, entitlements did not apply catholically until reconciliation came about and parts of the almost two decades after their formal West re-embarked upon a more propitious adoption. It is flagrant and revolting that the track. Nevertheless, several states across policy makers of any country should act in Europe were a long way from concluding systematic denial of the standards they had their democratic transition, while a great deal consented to. It is sensational, yet, at the of others became trapped in an authoritarian same time, somewhat lamentable that stranglehold. With respect to the former, democratic values triumphed over socio- consider Francoist Spain, the Estado Novo in political inequity largely thanks to the Portugal or the Regime of the Colonels in perseverance and subversiveness of reform Greece; with respect to the latter, consider movements. It is preposterous that Yugoslavia and the Eastern Bloc. establishments with a history of suppressing Democracy did not dawn in these countries individual and collective self-determination until as recently as the 1970s2. As much as should become their most zealous the West enjoys patting itself on the back proponents. It is entirely unacceptable that about how far it has progressed, when democracy should be undemocratically juxtaposed with other systems of imposed upon those, whose cultural fabric is governance, democracy comes out as quite incompatible with its pretences. embryonic. We should therefore endeavour to conduce to its uncomplicated gestation Ludwig Wittgenstein, perhaps the and birth. Similarly, we should safeguard the greatest philosopher of the 20th century, other hallmark of the Western civilisation – made an assertion in Philosophical Investigations the observance of human rights. I shall note that I shall now paraphrase: 'If a porcupine that in 2014, fifty years will have elapsed could speak, men would fail to understand since the enactment of the Civil Rights Act him' (p. 225). It is because the porcupine's of 1964, which outlawed discriminatory perception of the world differs entirely from practices against minorities and women in ours that we could not appreciate it. The The United States3. A year later, a half- same, of course, could be said of the human century will have passed since the perspective from the point of view of the enfranchisement of African Americans4. porcupine. In its vehement attempts to One must bear in mind, while reflecting on export human rights and democracy, the these facts, that in 1948, the U.S. adopted West is feeding truffles to porcupines. It is seeking to introduce into foreign lands values and a societal structure which, more 2 1990s as far as Yugoslavia and the Eastern Bloc are concerned. often than not, collide with the established 3 Titles II - VII. cultural norms. Moreover, it is doing so in 4 The Voting Rights Act came into effect on August quite an imprudent and seemingly 6, 1965. 11

Jakub Tloka Feeding Truffles to Porcupines

extemporaneous way. The West does not French Revolution - an event whose seem to recall that democratisation engineers mismanaged the authority which progresses incrementally. It does not seem they had wrested from the sovereign and to recognise the importance of historical eventually precipitated the state's relapse to tradition and the extent to which it has autocracy. Jean-Jacques Rousseau, whom shaped contemporary societies. And finally, many have called the 'father of the French fond as its leaders are of the popular Revolution', wrote in The Second Discourse: platitude 'change comes from the bottom Discourse on the Origin and Foundations of up', they do not seem to grasp its Inequality Among Mankind that '[a] people implications. Edmund Burke, the great Irish once accustomed to masters are not able to conservative political theorist, wrote in live without them' (p. 73). Newly Reflections on the Revolution in France that emancipated states, most of which stretch '[p]eople will not look forward to posterity, across Latin America and Central and who never look backward to their ancestors' Eastern Europe, are yet to endure the many (p. 29). Political establishments may come trials of a free society. Time alone can tell about by means of three disparate modes, how well they will fare. What regimes came which I shall now expound. First, there is of evolutionary transitions have become infliction – the forced introduction of prosperous and self-sufficient. Consider extrinsic government. Second, there is Norway, a country whose becoming a revolution – the collective quest for political sovereign constitutional monarchy reorganisation. Third, there is evolution – the represented a culmination of the historical, gradual transition towards a socially political, and socio-economic developments. opportune state of affairs. The expediency It was timely because by 1905, when the of the transitions which proceed from these Union between Sweden and Norway was modes can be determined through dissolved, Norway's economy had grown investigating their popularity and timeliness. A vigorously and its administrative institutions popular transition will be consented to by had become largely self-reliant. It was the concerned population. A timely popular because in the 1905 referendum, an transition will only take place once the overwhelming majority6 of Norwegians public have become attuned to its precepts. voted in favour of the dissolution. Thomas Masaryk, the first president of Czechoslovakia, once said: 'We have got It has been said time and again that democracy. What we need now are some history cannot be accelerated. Yet time and democrats'5. What regimes came of inflictive again, men have brazenly sought to alter its transitions have been either tyrannical by currents. One such endeavour in the former design or became so gradually. Albeit their USSR brought about a regime whose acceptance was rather short-lived, they have despotism and uncompromising brutality occasionally been popular. At the same time, against the 'politically proscribed' are however, they have been particularly unparalleled by modern historical standards. untimely. Consider the introduction of A synthesis cannot occur without a thesis socialism in the former Eastern Bloc. What and an antithesis. Recently, the regimes came of revolutionary transitions disenfranchised masses of the Arab World have been at the mercy of their rallied for social and political rearrangement. orchestrators. Popular as they initially were, Their crusade was met with enthusiastic revolutionary establishments have seldom praise by numerous statesmen across the outlasted the preceding governments. For a West. Whether the Arab Spring will yield cautionary example, one might look to the more favourable establishments remains to be seen. Let us bear in mind a quote from Hegel's Lectures on the Philosophy of History: 5 This is a literal translation from the Czech language. To my mind, there exists no official rendering of the quote. 6 Approximately 99,5 %

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'What experience and history teach is . . . 9/868/1/The%20History%20of%20Norwa that peoples and governments never have y.pdf learned anything from history, or acted on principles deducted from it' (p. 6). Garrard, G. (2012, May/June), Brief Lives, Jean-Jacques Rousseau (1717-1778). Philosophy The porcupine is not in a position to Now, 90. Retrieved February 23, 2013 from: recognise the delicacy of truffles. He might http://philosophynow.org/issues/90/Jean- find man's insistence upon his consuming Jacques_Rousseau_1712-1778 the precious fungus rather curious. But because dietary appreciation has not yet Hegel, G. W. F. (1914). Lectures on the penetrated into his world, the porcupine is Philosophy of History, London: Bell not to be held accountable for his gastronomic inadequacy. It remains to be Locke, J. (2002). The Second Treatise of seen whether he will ever relish savoury Government, London: Dover Publications Inc. food. Man, unlike the porcupine, realises that the procurement of truffles is especially Rousseau, J-J. (2002). The Social Contract and laborious. He should therefore know better The First and Second Discourses. Yale: Yale than to shove mushrooms down the poor University Press rodent's throat. If the West desires to export its cultural standards, it is important that it Transcript of the Civil Rights Act (1964): acquaint itself with the intricate constitution Retrieved February 22, 2013 from: of the porcupine's world. It must essay to http://www.ourdocuments.gov/doc.php?fla determine, by means of a thorough and sh=true&doc=97&page=transcript dedicated analysis, the likelihood of exotic sociocultural markets accommodating its Yearbook of the United Nations (1948- product. Should the West fail to execute this 1949), Retrieved February 22, 2013 from: measure, its reformative endeavours might http://unyearbook.un.org/1948- soon prove untimely. Furthermore, should it 49YUN/1948-49_P1_CH5.pdf disregard the sentiments of its clients, the Western mode would prove inflictive and Wittgenstein, L. (1958), Philosophical therefore unpopular. John Locke said in The Investigations. London: Basil Blackwell Second Treatise of Government that '[no man] can be . . . subjected to the political power of another, without his own consent' (§ 95). It would be unworthy of the West to contradict the maxims of its ideological fathers.

Progress has a harsh way of correcting our judgment. It is remarkably difficult to accomplish, yet unusually simple to reverse.

References

Burke, E. (1791), Reflections on the Revolution in France, London Dagre, T. (1999), The History of Norway: Millenium, 15. Retrieved February 22, 2013 from: http://repositorio.ipv.pt/bitstream/10400.1

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Pawan Kumar Adressing Political Corruption in India

Addressing Political Corruption In India: Fundamental To The Process Of Democratization

Pawan KUMAR, University of Delhi, India

Abstract

he debate on the relationship between corruption and democracy involves the fundamental issue of the nature of corruption and that of democracy. Both these concepts can be understood in quite different T manners. This paper tries to bring corruption into the realm of democratic theory by focusing on the nature of the problem and its effects on democracy. It begins by discussing the various ways in which theorists and thinkers have conceptualized political corruption, making it a complex phenomenon. This explores how political corruption takes root in and thrives in a democracy. The paper also highlights the importance of focusing more on the effects of corruption so that the systemic nature of the problem can be explored. The intention in this paper is not to come up with any grand theory of corruption but it only seeks to problematize the conventional and prevalent understanding of political corruption. Conventionally, corruption has been considered as a moral, individual or social problem but recent approaches to study corruption have tried to establish link between corruption and democracy by focusing on the effects of corruption on democratic institutions and processes. These different understandings have made corruption a contested field of research as it affects economic, social, and political aspects of a political system almost equally. This exercise insists the need of looking at it from institutional perspective as it is engulfed in social, economic and political fields. The paper presents its arguments by acknowledging the link between reducing corruption and broader process of democratization.

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Understanding Political Corruption: always identified as a serious threat to any Definitional Debates society, it never received due attention from the point of view of eradicating the problem. orruption has always been present in Corruption has received serious attention society and structures of state but only in the recent past. One of the reasons C the theoretical as well as the practical as to why corruption did not get due understanding of corruption has evolved attention in the past is that corruption was only in the recent past. Corruption has either seen as a universal and inevitable been understood as a structural problem of phenomenon which could not be tackled politics and economics or as a cultural and rationally. Another reason is the argument moral problem that makes the study of put forward by the neo-liberal economists corruption multi-disciplinary. that corruption was considered as the result Notwithstanding this complex of proactive regulated state and its understanding of political corruption, this commitment to planned development. For paper identifies lack of accountability as one them a socially corrupt act is only a result of of the major reasons for explaining political scarcity conditions created by the state corruption. In a democratic setting this which can be tackled by addressing this issue implies the failure of political institutions in of state’s role in economic management. a society. It becomes important, hence, to Another set of argument is given by the examine why the present institutional set up “revisionists” who believe that some form of has failed to tackle political corruption in corruption may prove to be helpful in India. governance and development.2 Thus, there The meaning, nature and definition

of corruption have always been a matter of 2 The “revisionists” challenge the debate and have evolved over time, with assumption that corruption has only negative effects and argue that it can classical conceptions of corruption focused perform some positive functions as well. mainly on the moral understandings, At least three groups of writers can be identified who are the proponents of this whereas modern conceptions conceiving it view. First set of writers are inspired by mainly in terms of specific actions of the structural-functional school who 1 believe that corruption serves positive specific individuals. Though corruption is functions, especially the function of social integration. Robert K. Merton’s study falls in this group. (see his Social Theory and 1 Michael Johnston, “The Definitions Social Structure, New York, Free Press, Debates: Old Conflicts in New Guises”, in 1957, pp. 72-82) Another set of writers Arvind Kumar Jain (Ed.), The Political conceive corruption as a regulatory Economy Of Corruption, London, mechanism for the informal allocation of Routledge, 2001, p. 11. scarce licenses and services and can be 15

Pawan Kumar Adressing Political Corruption in India

can be different ways to explain the causes bureaucrats in which they accept bribes for and consequences of corruption. There is illegal acts or for “speedy works” to meet Marxian perspective that conceives their personal needs or greed. In political corruption as a system of general social corruption, apart from the above acts, principle and relation in a community which politicians try to seek legitimacy for their can be explained in terms of the interest of corrupt behavior as something that is an the dominant class, there is sociological integral part of political competition and perspective that considers corruption hence challenges the very essence of the context specific with different societies political process.3 So corruption, viewed experiencing different forms and degrees of from this perspective, is damaging to the corruption, there is techno-bureaucratic democratic institutions. perspective which sees corruption as a result Trying to understand corruption in a of over-regulated state and there is political democracy, Mark E. Warren points out that perspective that tries to draw a distinction the topic of corruption has been absent between bureaucratic corruption and from democratic theory and the reason political corruption and calls for the behind this is that there have been missing inclusion of the struggle against corruption links between concepts of corruption and in the political agenda. Bureaucratic democracy. Warren argues that corruption is corruption in this view involves those acts of a form of harmful exclusion of those who related to the market–centered definitions have a claim to inclusion and hence involves of corruption. V. O. Key, for example, 4 argues that corruption helps in regulating an unjustifiable disempowerment. Warren is and controlling practices like prostitution trying to provide, what he calls a democratic and gambling because they are illegal and cannot be controlled through legitimate conception of corruption and believes that political means. Third group of writers corruption in a democracy usually indicates a are institutionalists, identified with public- interest definition of corruption, who deficit of democracy, breaking the link view corruption as a better alternative for

fulfilling demands during the periods of 3 political degeneration and decay of Devendra Raj Pandey, “Governance and institutions. Samuel Huntington argues Political Corruption: A Perspective on that in periods of political degeneration, Prospects of Regional Cooperation in the possible alternatives for making South Asia”, in K. K. Bhargava and demands upon the system are corruption Sridhar K. Khatri (Ed.), South Asia 2010: and violence, the former being the better Challenges and Opportunities, Delhi, Konark alternative as it poses lesser threat than Publisher, 2001. the latter alternative. (see “Modernization 4 Mark E. Warren, “What Does and Corruption” in his Political Order in Corruption Mean in a Democracy?”, Changing Societies, New Heaven, Yale American Journal of Political Science, Vol. 48, University Press, 1968, pp. 59-71.) No. 2, Apr. 2004, pp. 328-343.

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between people and the state and reducing corruption properly and focus is generally the domain of public action by adversely on the individuals who perform the corrupt affecting peoples’ power to influence the acts, which problematizes the general collective decision-making process. He understanding of the nature of political argues, “corruption in this way diminishes corruption. In the cases of political the horizons of collective actions and in so corruption, attention is not given to the doing shrinks the domain of democracy. victims of the corrupt act i.e. those who get Corruption undermines democratic affected by the corrupt action and the focus capacities of association within civil society is generally on those who perform the act by generalizing suspicion and eroding trust and hence corruption is not seen as anti- and reciprocity.”5 The conceptual link people or anti-human, it is seen only as a between corruption and democracy can be violation of abstract principles.8 Corruption identified if corruption is seen as “a form of sustains because people relate it to just few duplicitous and harmful exclusion of those leaders or officers and do not consider it who have a claim to inclusion in collective systemic and people believe that by getting decision and actions.”6 the corrupt out of the office the task is completed, which is a false belief from It has become a general practice that which people need to come out. the politicians try to deflect criticisms on account of widespread corruption by arguing The different perspectives on that corruption is not systemic but is political corruption makes it a complex accidental and try to socialize people in such phenomenon, which can be understood in a way that they start viewing corruption as a different ways and help in understanding the problem of just a few officials or leaders causes and consequences of corruption from rather than a systemic problem. Thus, “one different stand points, making the task of plausible failure of the political market-place defining corruption even more difficult and arises if the minimal relevant knowledge complex. Political corruption has got a about corruption is not available.”7 People complex nature and cannot be defined are not able to assess the effects of through a single statement. However, it may be understood in terms of the actors 5 Ibid., p. 329. involved and also in terms of the purpose of 6 Ibid., p. 329. the corrupt behavior, which involves private 7 Oskar Kurer, “Why do Voters Support Corrupt Politicians?”, in Arvind Kumar Jain (Ed.), The Political Economy Of 8 Ratnakar Tripathy, “Corruption as Corruption, London, Routledge, 2001, p. Privilage and Violence”, Lokayan Bulletin, 79. Vol. 12.5, March-April, 1996, pp. 5-10. 17

Pawan Kumar Adressing Political Corruption in India

or group enrichment or power preservation. analytical terms.”9 Bureaucratic corruption Often these two forms are connected and takes place at the implementation side of sometimes political corruption involves both politics, whereas political corruption usually the processes, i.e. on the one hand there is takes place at the formulation end of accumulation of wealth and on the other politics, where policies regarding distribution hand there is misuse of public money for of nation’s wealth are made. What can be political purposes. When the public officials more damaging is when these two work misuse their power to extract from private together to perpetuate each other. sector, government revenues and from Any attempt to understand political economy in general, political corruption corruption must confront the task of takes the form of accumulation. Such defining the concept. Varieties of definitions processes of accumulation are called have been employed to explain corruption extraction, embezzlement, rent-seeking, but none of them explains it in a holistic plunder, kleptocracy (‘rule by thieves’), as manner. Contemporary social science the case may be. On the other hand, when definitions of corruption can be categorized the extracted resources are used for political within three strands explaining corruption purposes like power preservation, it takes by relating it to either public office, or to the form of favouratism and patronage politics demand supply and exchange concepts of which may include distribution of these economic theory, or to the concept of public resources to build loyalty and political interest. These are called the pubic-office support that may involve buying votes and centered definitions, the market-centered other benefits through favours in different definitions, and the public-interest centered forms. Political corruption can be definitions respectively. distinguished from administrative or bureaucratic corruption as it is witnessed at The public-office centered the highest level of political system. In a definitions define corruption as any report on corruption research it is argued deviation from normal duties of a public role that “the distinction between political and because of private regarding gains. J. S. bureaucratic corruption is rather ambiguous. Nye’s definition of corruption well illustrates It depends on the Weberian separation of the public-office definition which is as politics from administration, which has follows:

proved difficult to implement in most poor 9 J. C. Andvig (et al.), Research on countries and hence is difficult to observe. Corruption: A Policy Oriented Survey, Commissioned by NORAD, Final The distinction is nevertheless important in Report, December, 2000, p. 19.

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Corruption is behavior which desired benefits. When this deviates from the formal happens bureaucracy ceases duties of a public role to be patterned after the because of private regarding mandatory market and takes (personal, close family, on characteristics of the free private clique) pecuniary or market.11 status gains; or violates rules against the exercise of certain In the same vein Van Klaveren goes on to types of private regarding influence. This includes such state that “a corrupt public servant regards behavior as bribery (use of his public office as a business, the income of reward to pervert the judgment of a person in a which he will seek to maximize. The office position of trust); nepotism then becomes a “maximizing unit”. The size (bestowal of patronage by reason of ascriptive of his income depends upon the market relationship rather than situation and his talents for finding the point merit); and misappropriation (illegal appropriation of of maximal gain on the public’s demand public resources for private- curve.”12 Some theorists have argued that regarding uses).10 market-centered definition cannot be used The market-centered definitions consider a to define corruption. Mark Philp argues that corrupt public official is the one who regards though the market-centered definition may his/her public office as a business, trying to be one way of understanding corruption, it is maximize the income and is reflected in certainly not a way of defining it. According Robert Tilman’s definition of corruption to Philp “what defines an act as corrupt is who states that: not that it is income maximizing, but that it is income maximizing in a context where Corruption involves a shift from a mandatory pricing prior conceptions of public office and the model to a free-market principles for its conduct define it as such.”13 model. The centralized allocative mechanism, which He is of the opinion that all the cases of is the ideal of modern income maximizing need not be corrupt and bureaucracy, may break down in the face of serious hence to consider any interest or income- disequilibrium between maximizing act as corrupt, it requires supply and demand. Clients may decide that it is construction of public office and the public worthwhile to risk the

known sanctions and pay the 11 higher costs in order to be Ibid. assured of receiving the 12 Ibid. 13 Mark Philp, “Defining Political 10 Cf. Arnold J. Heidenheimer (Ed.), Corruption”, in Paul Heywood (Ed.), Political Corruption, New Jersey, Political Corruption, U.K., Blackwell Transaction Books, 1970, p. 5. Publisher, 1997, p. 28. 19

Pawan Kumar Adressing Political Corruption in India

interest which are based on certain norms corruption, as it requires identifying proper and values, which provide certain normative conception of the public interest. constraints on income maximizing. Thus, these definitions are vague The public-interest centered until certain norms are identified to definition conceives corruption as violations distinguish between corrupt and non-corrupt of common interest for special advantage. acts. Any normative judgment about political The public interest-centered definition is corruption requires a point of view and a exemplified by Carl Friedrich who argues: standard of “goodness” and the definition of political corruption should be based on The pattern of corruption can be said to exist whenever certain conception of non-corrupt politics, a power holder who is which requires identification of proper charged with doing certain things, i.e., who is a standards to distinguish between corrupt and responsible functionary or non-corrupt acts.15 In a democracy usually office holder, is by monetary or other rewards not legally these standards are democratic principles provided for, induced to take and values which form the basis to identify actions which favour whoever provides the politically corrupt acts. rewards and thereby does damage to the public and its How does Corruption Thrives in a interests.14 Democracy?

These different understandings of It is now clear that corruption in a corruption have made political corruption a democracy undermines democratic complex phenomenon. A careful structures as well as democratic values. examination of the above definitions would Focus on effects of corruption in a reveal that public office and public interest are intimately connected. The open character 15 Some theorists have argued that the of politics demands the politicians to be market-centered definition of corruption guided by public interest. Politicians are not seems to bypass this requirement of norm setting as market does not give simply to fulfill promises made to electorate importance to any norm since it is based rather politics is also about the projection of on the principle of self-interest and profit. However, there are other conceptions of public interest. The idea, theorists who argue that even market therefore, should not be to strive for functions on certain rules applicable to the actors and there are certain formulating one line definition of political characteristics that distinguish a “black market” from a “free market”. (for a detailed account of this debate see 14 Heidenheimer, op. cit, p. 6. Heidenheimer, 1970, op. cit.)

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democracy helps in better conceptualization Corruption in India can be attributed of the concept and in understanding the fact to the social situations that make corruption that there is a kind of inverse relationship more likely. In India the governments in between corruption and democracy which most of the cases acquired control over the means that as corruption increases disposal of posts and privileges and they had democracy is undermined and as democracy to face the electorates, mostly poor, who is strengthened opportunities of corruption could be easily influenced by material are minimized.16 Daniel. Treisman is of the incentives. India lacks well-developed opinion that countries with freedom of structures for expressing and combining press, vigorous civic associations, can have important political interests. The effect of greater ability to expose corruption.17 But this lack of interest structures is that political the question that emerges now is how demands that originate outside the elite class corruption sustains in a democracy? India, have minimal influence on legislation, which which is one of the largest democracies in is one of the reasons behind little or no the world, is grappled with the problem of influence of the public on the ‘output’ of the corruption which forces us to think whether government. Demands of the people or there are some structural faults in the groups reach the political system only at the functioning of democracy that helps implementation stage and not before the corruption to survive. This section is laws are passed. The influence before the devoted to investigate this aspect from the passage of legislation is called ‘pressure Indian perspective and examine whether group politics’ and the influence at the India provides some special context as a enforcement stage often involves breeding ground of corruption. ‘corruption’. For example, agitation of peasant groups through their union for

16 There are theorists who have contrasting reduction in land tax is different than opinion to this viewpoint and argue that making an illegal monetary contribution to the negative correlation between corruption and democracy is not very the concerned officer for avoiding their land strong and is only statistical taxes. The latter influences the outcome of correlation.(see Martin Paldam, “The Big Pattern Of Corruption: Economics, government policy. In this sense corruption Culture and The Seesaw Dynamics”, is not just a reflection of the failure of the Working Paper, No. 1999-11, Department of Economics, University of Aarhus, formal political system to meet the demands 1999.) of important sectors; it is also representative 17 Daniel Triesman, “The Causes of of the efforts of individuals and groups to Corruption: A Cross National Study”, Journal of Public Economics, Vol. 76, 2000, mould the political system according to their pp. 399-457. 21

Pawan Kumar Adressing Political Corruption in India

wishes.18 People who feel that their interests of the material incentives it supplies. The are ignored by the formal political system ordinary voters desire immediate material often take up the informal ways to influence rewards and therefore they vote for those which is corruption. who can give them maximum favour. When voters think that their best interests are not Electoral competition is one area in a being served by the political system, they political system that widens the arena of may support a corrupt politician who serves political influence. Since people’s vote makes their interest rather than an honest politician a difference in the affairs of those who seek who represents others as well. Such power and manage the state, the power- assumptions rest on the belief that voters are holders and power-seekers adopt different well aware about the nature of corruption as methods to influence the voters. In this well as its effects, which is not true in reality sense the control over votes has proved because voters are ignorant about the effects ineffective in ensuring accountability of the of corruption and hence they are not able to political leaders. The major political resource assess the effects of corruption correctly today is control over coercive force and not which makes them falsely believe that control over votes. Thus it is not always true corruption serves their material interest. that people vote because they want to replace the corrupt leader as there can be With this understanding, democracy several other reasons why people vote in a becomes a set procedures and institutions democracy. Sometimes people vote because where people elect their representatives,

whose accountability is ensured only 18 Jeffrey Witsoe while examining the ways periodically. Participation, within this in which politics of caste empowerment altered the ways in which the state was understanding, is restricted to the exercise of popularly imagined, came up with the franchise by citizens of a country. Thus, in a finding that many people began to perceive state institutions as inherently representative democracy like India, election corrupt sources of political patronage becomes the only opportunity that people and that, having long served to perpetuate upper-caste dominance, have to hold their leaders accountable. could now be used in the same way by a Hasan Suroor is critical of limited new class of political leaders to empower lower-caste groups. Within this context, participation of people that is restricted to corruption was tolerated, sometimes the voting process and draws attention to even celebrated, as a means to lower- caste empowerment.(Jeffrey Witsoe, the fact that the belief of voters that “Corruption as Power: Caste the elections empower them is actually a false Political Imagination of the Post-colonial State”, American Ethnologist, Vol. 38, No. belief. In most of the third-world countries, 1, 2011, pp. 73–85.) where vast majority of population is

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excluded from decision making process, the significant inequalities among citizens in ballot-box is the only means through which their capacities and opportunities for they can have their voices heard. He points participating as political equals in governing out that despite the poor record of the state.”21 Thus, it may be argued that governance the very idea of electing some form of large scale redistribution of government gives the voters a sense of resources is needed for ‘effective power, which is actually illusory.19 participation’. For Dahl, if a person has sufficient resources and will, he or she can Robert Dahl gave a lot of actualize the equal opportunity granted to importance to participation and believed that him or her. Consequently it may be argued citizens must have adequate and equal that the procedures that ensure equal opportunity to express their preferences for opportunity to participate depend upon the the final outcome. He argues that denying substantive equalization of resources. any citizen the opportunity for effective participation means that their preferences It is, however, important here to are not considered because either they are consider that merely ensuring equal unknown or incorrectly perceived. However, distribution of resources cannot be enough if their preferences are not taken into to ensure participation and there can be account, it means that the principle of equal various other factors that may affect consideration of interests is compromised. ‘effective participation’ of the people. With this, it appears that ‘effective Proceduralists cite election data to explain participation’ also takes into account the fact participation because of which they tend to that the reason for lack of participation may slip into the “fallacy of electoralism”.22 Their be because of some form of control.20 Dahl analyses overlook the socio-economic is of the opinion that ownership and control inequalities, which make formal participation “contribute to the creation of great difficult to be effective. It overlooks the fact differences among citizens in wealth, that there can be different barriers to income, status, skills, information…[and] political participation like caste, patriarchy, differences like these help in turn to generate and so on. The free exercise of franchise

may be curtailed “when people do not have 19 Hasan Suroor, “Looking Beyond Ballot- the power of independent decision making; box Democracy”, The Hindu, Wednesday, August 22, 2007. 21 20 Neve Gordon, “Dahl’s Procedural Cf. Ibid. Democracy: A Foucauldian Critique”, 22 “Introduction”, in Niraja Gopal Jayal Democratization, Vol. 8, No. 4, pp. 23-40, (Ed.), Democracy in India, New Delhi, p. 26. Oxford University Press, 2001, p. 3. 23

Pawan Kumar Adressing Political Corruption in India

when they have inadequate access to which may draw one to the conclusion that relevant information; when they are helpless India is a true democracy. This assumption in holding their representatives accountable; rests on the procedural view of democracy and, above all, when their franchise fails to which views democracy purely as a set of yield a responsive administration.”23 The institutions. But to conceive Indian basic condition for effective political democracy in its true sense, there is need to participation is something more than merely look at it from the glass of equality and see providing equal political rights and it cannot whether people are truly equal or not, be ensured by just providing equal resources whether citizens are actively engaged to people. The study by Neve Gordon politically and have an equal voice in brings out two main difficulties in the choosing their representatives and holding procedural model. Firstly, he argues that the them accountable. On this account, Indian mechanisms that suppress freedom, democracy has to cover a long distance undermine plurality and fosters inequality, which makes it necessary to understand it in can, in fact function within a ‘perfect’ substantive sense. Equality, being the procedural democracy and hence equality foundational principle of democracy, was can be undermined within a procedural incorporated in the Constitution of India in model. Secondly, he is of the opinion that a the form of equality before the law and ‘perfect’ procedural democracy cannot be equal protection of the law. However, it is divorced from existing power relations also a stark reality that equality before the operating in a society that may greatly hinder law is severely compromised for those who people’s participation.24 are unable to approach the courts for violation of their rights. It is also true that In India, in particular, the obstacles though civil liberties and personal freedoms to such meaningful participation are are formally recognized, in actual practice numerous, and certainly these are not just there are severe violations of these rights. the result of unequal distribution of “Despite the fact that elections have been resources but also result from unequal regularly held, and have for the most part power relations operating in the society. been free and fair, it is on the twin Democracy in India is characterized by dimensions of accountability and constitutional government with free and fair responsiveness that democracy in India, election, legislative assemblies and so on, judged even on limited procedural criteria,

23 Ibid., p. 4. 24 Gordon, op. cit.

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has proved inadequate.”25 Though it is true to give so much emphasis on the substantive that voters have voted out corrupt or nature of democracy and to judge inefficient regimes, the structures of democracy on the substantive criteria is governance have always been inaccessible to nothing but utopian, as no existing the ordinary people.26 democracy would pass such a test. Every society whether rich or poor has some kind This, however, should not mean that of injustice. But it is important to realize that procedural democracy is not required or is the issues of inequalities and injustices of rejected out rightly. The above debate is any kind need to be addressed in any presented only to highlight the fact that democratic theory. procedural democracy is necessary but not sufficient for making democracy meaningful. Within this conceptual framework it “The project of democracy is not is important to understand that political accomplished by merely securing legal and corruption is more a problem of substantive political equality, it may be severely democratization. Prevalence of political compromised by inequalities of wealth, corruption despite the presence of various power and social status, which deny many anti-corruption institutions and different from having a truly equal opportunity to constitutional safeguards clearly influence governmental decisions.”27 demonstrates that there is some problem in Therefore, it may be argued that democracy the functioning of democracy which is should not be confined to the sphere of manifested in the form of lack of effective state and government. It should also be seen participation of people in political processes. as the principle governing collective life in It is because of lack of participation that the society. It may, however, be argued that people are not able to hold their

representatives accountable, which 25 Ibid., p. 36. 28 26 It is in this context that some scholars ultimately leads to political corruption. In have highlighted the role of intermediary this sense, it becomes important to assess institutions in ensuring accountable government in a representative Indian democracy on the basis of some clear democracy and argue that to have principles that may help in conceptualizing popular control over government in representative democracy the intermediary institutions play a vital role 28 It is important here to consider that lack in facilitating transparency and of participation is not the only reason accountability. (see Marian Sawer , “The for political corruption rather the paper Democratic Audit of Australia: Populism th tries to argue that one of the effective vs Citizen Rights”, Paper presented at 20 ways to effectively address political IPSA World Congress, July, 2006.) corruption is by ensuring participation of 27 Ibid. people. 25

Pawan Kumar Adressing Political Corruption in India

the link between reducing corruption and of successes and failures in the anti- the process of democratization. corruption reform process. The following sections provide an account of different Popular Approaches to Tackle Political approaches employed in different parts of Corruption: A Comparative Perspective the world to address corruption. It presents Reasons for the existence of corruption are a comparative study of why certain reforms many and so are the ways suggested for were successful in a specific country and tackling it. Ades and Di Tella propose three why some countries could not successfully possible approaches to reduce corruption. fight corruption which will help in providing First, is a “layer’s” approach which talks a wider perspective to examine why about strengthening laws and their proper democratic institutions fail to tackle political enforcement. Layer’s approach increases the corruption in India.

cost and risks associated with corruption, as The Power-Sharing Approach it focuses on punishment of the corrupt. Some theorists consider the idea of power- Second, is a “businessman’s” approach sharing as one of the effective ways to check which is in favour of giving proper abuse of power, as they see mutual incentives to public officials which would surveillance as a counterbalance to political reduce their temptation to engage in corrupt decay, such as bribery and corruption. activities. One way of providing such Robert Dahl preferred to call the power- incentive is to provide higher wages. A sharing democracy as “Madisonian businessman’s approach would reduce the democracy” as it was Madison who warned incentives of corruption as the motivation that if power is concentrated there is always for engaging in corrupt act is reduced by a risk of its abuse and hence concentration providing different kinds of incentives to the of power must be avoided. He did not public officials. Third, is an “economist’s” accept regular election and internal checks approach that advocates increasing like conscience, attitudes and personality of competition so that opportunities for individuals, as sufficient to provide necessary exploitation in different transactions can be checks on the abuse of power, rather he minimised. Economist’s approach would insisted on external checks, through reduce opportunities for corruption, as dispersion of power into different hands. competition reduces the chances of abuse of power.29 It is important to study some cases

29 A. Ades, and R. Di Tella,, “The New Some New Results”, Political Studies, Vol. Economics of Corruption: A Survey and 45 (Special Issue), 1997, pp. 496-515.

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Arendt Lijphart advocated power- view, as for him, regular election is not an sharing model by bringing in the idea of effective way to fight corruption, at least not “consensus democracy” to avoid abuse of as effective as would be in a case of power. Different mechanisms that he “consensus democracy” having mutual thought would be instrumental in arriving at oversight. According to him, abuse of power “consensus democracy” are “grand and corruption are less prevalent in coalition”, “decentralisation”, “minority consensus democracy than in majoritarian veto”, and “proportional representation.” It democracy. However, Lijphart’s consensus means that if everyone has a share in democracy model does not seem to provide governmental power, there is delegation of any mechanism for ensuring accountability power, minorities have a veto regarding because if everyone will have a say in issues concerning them and losers too have decision making process then it is not clear representation, the risk of abuse of power who should be held responsible for the would be greatly minimised. He believed decisions. It seems that for Lijphart what is that if all are able to take part in government more important is that the government through their chosen representatives, then should reflect popular opinion and whether they would be able to ensure that no people hold their leaders accountable or not injustices are done to them. When different is not important for him. parties will be represented in the parliament Though theorists have considered and no party has a majority, they will form power-sharing as an effective method to coalition to make the government and in this check abuse of power, empirical evidence situation minorities will also have a say in the suggest just the opposite. One such case government. Lijphart firmly claims that the where the power-sharing model failed is the proportional method would counteract case of Italy where both proportional and political corruption and hence considers majoritarian systems were tested and proved proportional representation as the most to be ineffective in tackling political fundamental institutional value. Though corruption. Italy practiced proportionalism there is also a view that in a majoritarian with a firm belief that dispersing power into democracy, the opposition in minority many hands reduces the risk of abuse of provides necessary check on the abuse of power which proved to be wrong, as in early power and with regular elections people 1990s far-reaching corruption came to light in have the opportunity to throw out the the Italian politics. As a response to this crisis corrupt and it is the best way to ensure the Italians made transition to majoritarian accountability, Lijphart is critical to this democracy hoping that this would clean up

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Pawan Kumar Adressing Political Corruption in India

the politics but that too proved to be and the mafia became a political power ineffective. In such a situation it becomes factor.30 interesting to explain political corruption in In February 1992, Mario Chiesa, a Italy because it was precisely to check such Socialist politician, was arrested for taking abuse of power that the principles of bribes for offering contracts to several proportionalism and power sharing were companies in exchange of political support incorporated into the constitution. and money. This scandal gradually grew big The framers of the Italian and became the biggest scandal in the Constitution had thought that by political history of modern Italy which incorporating power-sharing they could resulted in the fall of the First Republic and guarantee a just and fair reflection of the the end of consensus democracy.31 In a popular will which was soon proved wrong referendum in 1993 more than 80 per cent by the developments that followed. Even if of voters wanted a change to majority the largest party could not achieve majority, it 30 could secure power through negotiations with Leif Lewin, Democratic Accountability: Why Choice in Politics is both Possible and other parties. In this situation there was Necessary, London, Harvard University hardly any option for alternative government, Press, 2007, p. 105. 31 The investigation was carried out under as there was no fear of losing office. The Antonio Di Pietro, a Milan Magistrate, leaders of the parties became the masters of and was called “Operation Clean Hands”. Operation clean hands succeeded because the country and the negotiations took place of Di Pietro’s minute preparations. Di within this “elite cartel” that decided the Pietro used computer technology to trace bank transactions, which helped him to course of action and in this way the decisions identify the link between politicians, taken were not the expression of popular will. Mafia and common crime. Those arrested were kept in San Vittore prison in Milan Governments were short lived but the same which had brutal, unhealthy and politicians returned to power on different unsanitary conditions. Those who were under suspicion were told that they posts. Gradually the negotiation process would remain in prison unless they started involving bribes and benefits and confess. Those who were released due to lack of evidence, would immediately be corruption became widespread. Both voters arrested again until confession came. The and organisations could be bought with politicians regularly tried to convince that political cooperation requires giving and money or political benefits, the courts, police, taking. They argued that negotiations and and social insurance system were politicised, coalition building cannot be done for free listic. cooperation with organised crime deepened and “clean hands” was unrea However, a reform movement had started with the aim of cleaning the politics from roots, that is, to change the electoral system.

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elections. Thus, the Second Republic with a try to make corruption a “high risk and low majoritarian system came into being. reward” activity33, which can be possible, as However, democracy under the Second some theorists argue, if a single-agency is Republic too was fragile and it was too created to look into the matters of marked by the tradition of corruption and corruption, which is operationally authoritarian tendencies. independent and able to function without Italy’s case suggests that fear or favour. It is often argued that in proportional representation is no guarantee certain cases there can be political for a clean government. The belief that if all interference as it could be dictated from had a share in power and kept watch over above regarding the cases it is going to each other, politics could become cleaner, investigate and also establishing an anti- was proved wrong. The change into a corruption agency with extensive legal majoritarian democracy too did not bring powers in the absence of effective oversight about any significant improvement. The procedures is questioned on the ground that abuse of power was part of both such an agency can add another layer of majoritarian and proportional system.32 (ineffective) bureaucracy to the law The Single-Agency Approach enforcement sector, divert resources from Corruption occurs when there are sufficient existing organisations, function as a ‘shield’ incentives and opportunities to engage in to satisfy donors and public opinion, and corrupt acts and there is also very less even operate as a political police force. probability of being caught and punished. So Countering such criticisms, supporters of for some theorists effort should be to reduce single-agency approach argue that in order or eliminate the incentives and opportunities to overcome such difficulties and maintain and increase the risk of being caught and public trust, the independence of such an punished so that corruption could be agency needs to be enshrined in national controlled. In this regard government should legislation or the constitution, and it should be a criminal offence to interfere with its

32 Italy’s case is important to consider operational independence. In reality, such because it is an example to prove that such changes in Indian democracy cannot be effective in tackling political 33 Su Jing, “Corruption by Design? A corruption. It suggests that unless Comparative Study of Singapore, Hong accountability of the leaders is ensured, Kong and mainland China”, Discussion political corruption is likely to re-emerge, Papers, Crawford School of Economics as representatives themselves may not and Government, Australian National turn out to be an effective check on University, 2007, corrupt use of power, as they themselves http://www.crawford.anu.edu.au/, tend to benefit from it. accessed on 5th August, 2011, p. 11. 29

Pawan Kumar Adressing Political Corruption in India

anti corruption agencies require the support the difference lies in different constitutional of other structures to do their job properly. design that has an important influence on According to M. Manion, properly-designed constraints on power. Thus, according to and timely interventions by government Manion anti-corruption efforts can be could successfully reduce corruption and studied by focussing on three things — anti- improve credibility of the government and in corruption agency, anti-corruption strategy, order to shift the equilibrium from and the context that puts constraints on “widespread corruption” to “clean power. government” there is need to have proper Anti-Corruption Agency design of government intervention.34 She Anti-corruption agencies are responsible to studies this transformation in the case of enforce anti-corruption legislations. In a Singapore and Hong Kong, on the one situation where there is widespread hand, and mainland China on the other, corruption with corrupt enforcers and there where the former is an example of is scarcity of enforcement resources, there successful transformation and the latter emerges various obstacles in the path of gives an account of the difficulty in bringing anti-corruption reform and an independent out anti-corruption reforms. Manion draws agency can play a vital role in these upon three fundamental differences in the circumstances. According to Manion, the approach of anti-corruption reforms in ICAC (Independent Commission Against Singapore and Hong Kong and that of Corruption) in Hong Kong succeeded in mainland China. Firstly, Singapore and overcoming these obstacles which enabled Hong Kong granted independent and Hong Kong to make the “equilibrium shift” absolute authority to an independent anti- from widespread corruption to clean corruption agency, while in mainland China government. She further mentions that the multiple agencies were granted partial and key components of agency design that often overlapping authority. Secondly, in enabled ICAC in controlling corruption was Singapore and Hong Kong corruption is its independence, its draconian power and addressed at multiple levels attacking adequate financial resources. All these three corruption in all forms and in all places, components were instrumental in efficient while in mainland China corruption was enforcement. The ICAC is independent in addressed in a piecemeal manner. Thirdly, terms of structure, staffing, finances and

power.35 Similarly in Singapore the POCA 34 M. Manion, Corruption by Design: Building Clean Government in Mainland China and Hong Kong, Massacusetts, Harvard 35 ICAC is directly responsible to the University Press, 2004. Governor (the Chief Executive after

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(Prevention of Corruption Act) was Constitution came up with a number of strengthened and more powers were given bodies to ensure integrity and accountability to the officers of CPIB (Corruption such as the Office of the Ombudsman was Practices Investigation Bureau) which greatly created to protect graft and corruption; helped in the anti-corruption reform Sandiganbayan, a special court was created for process. Manion compares this with senior officials for cases involving graft and Mainland China and points out that corrupt practices; the Civil Service Commission, Mainland China does not have any and the Commission on Audit were also independent anti-corruption agency. The institutionalised. Despite these laws and agencies that are functioning have policies the problem persists, as the overlapping jurisdictions and unclear democracy assessment of Philippines division of labour which often leads to demonstrates, because of weak enforcement. routine delay in transforming cases for The report of the democracy assessment of criminal investigation and consequently Philippines came up with many findings to people develop the believe that their show various causes of persistence of government does not have the ability and corruption. These findings revealed that the credibility to control corruption. Thus, the range of responsibilities and functions are so basic difference in the anti-corruption wide that they often overlap and the agencies in Hong Kong and Singapore taken environment of Philippines too does not together and Mainland China lies in their encourage integrity. The report further level of independence and effectiveness. revealed that annual declarations of assets by The democracy assessment of public servants are just formalities and in Philippines has a similar story to tell about actual practice the properties, income and corruption in Philippines. Philippines had a assets are never disclosed. It went on to state long history of widespread corruption, and that the nature of anti-corruption laws is after the restoration of democracy in 1986, a dual, whereby high ranking officials are number of laws and policies were enacted to seldom investigated or convicted, which prevent and curtail corruption. The 1987 makes the enforcement of anti-corruption laws almost impossible. The report also

1997 take over) and can practically highlighted the fact that election in design anti-corruption policies. The Philippines is the main economic activity for Commissioner is appointed by the Chief Executive and has a fixed term in the political players and it is used as a means to office. His staffs are recruited separately create and consolidate core constituencies. It from the Civil Service and the Police. Officials are not transferred to other was further pointed out that political parties departments. 31

Pawan Kumar Adressing Political Corruption in India

do not provide strong internal checks and strategy to tackle corruption which involved there is absence of external control on enforcement, prevention and education. spending, which make elections quite Enforcement is to increase the probability of expensive activities and hence the high cost being caught and being punished; prevention of election together with other contributing reduces the opportunities for corruption; factors build up a perfect context for and education is to increase the moral cost corruption to flourish, as because of of corruption. The purpose, in this sense, is expensive campaign process the elected to strike at the root causes of corruption. officers are forced to focus primarily on the Singapore’s anti-corruption strategy focuses recovery of this expense. The study revealed on both the incentives and opportunities for that the Commission on Election is ill prepared corruption, which has been possible by to police campaign overspending and other strengthening enforcement through POCA corrupt and illegal actions and there was an and CPIB. The prevention work taken up by impressive gap between electoral laws and various departments also forms part of the reality.36 Thus, the experience of Mainland strategy. The incentives of corruption are China and Philippines exemplify the failure taken care by increasing the salaries and of anti-corruption agencies in dealing with working conditions. Thus, both Singapore corruption, which exposes the fact that and Hong Kong emphasised on merely creating anti-corruption institutions enforcement, to increase the cost of cannot be an answer for corruption and corruption and on prevention, to reduce the hence brings out the need for an in-depth opportunities for corruption and at the same analysis of the problem. time they also emphasised on reducing the Anti-Corruption Strategy incentives of corruption. A public servant while acting as an economic Constraints on Power agent calculates the costs and benefits of It is important to realise that small-scale engaging in corrupt activities. Therefore, for government interventions won’t be of much a successful government intervention it is help unless there are some proper and important that these interventions are aimed systemic constraints on power. For anti- at reducing the corruption payoffs as well as corruption reforms to succeed it is the incentives to engage in corrupt activities. important that government’s commitment is Hong Kong came up with a three-pronged respected by people and this is possible only within a specific context with shared

36 Lim Millard (et. al), Philippines Democracy understanding of government’s Assessment: Minimising Corruption, Manila, responsibility, which is possible through a Ateneo University Press, 2007.

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constitutional design that provides measures.38 The specific measures involved constrains to all kinds of power operating activities carried out under the anti- within a political system. According to corruption agencies and the non-specific Manion, one of the basic differences measures involved administrative measures between Hong Kong and Mainland China taken by various government agencies which lies in their different constitutional designs. included, in the case of Singapore, Countries that uphold rule of law would be disciplinary proceedings by Public Service able to put constraints on corrupt actions Commission, scrutiny of government more effectively, which was evident in the expenditure by the Auditor General and so case of Hong Kong and Singapore, than in on.39 countries having ambiguous laws and where The “Big-Bang” Approach legal authority is politicised, as was seen in Often remedies suggested to tackle the case of Philippines. In such cases rule of corruption is thought to be a well set law cannot become a meaningful constraint mechanism and it is believed that once it is on the abuse of power. operationalized an incremental process of Thus, both Singapore and Hong change is put into a path, where with every Kong initiated a comprehensive anti- step the society is taken away from corruption strategy which aimed at reducing corruption and with some ‘initial steps’ or both the opportunities and incentives for minor institutional changes the society is put corruption.37 The anti-corruption efforts into this “path” and it is taken out of the comprised of specific and non-specific grip of corruption. According to World Bank, for example, the implementation of

anti-corruption policies requires an 37 The case of Singapore and Hong Kong show how corruption can be tackled important entry point for anti corruption from above. But these countries cannot efforts. In one of the reports it is stated that be taken as examples because neither of these countries was a democracy and it “it is critical to begin at a point where the functioned in the hands of autocratic goals are feasible and tangible results can be leaders and it would throw an impression that democracy cannot realized within a time frame that builds become a tool to fight corruption. The support for further reforms. Small gains can reason for their inclusion in this research

is that the intention is to study the anti- 38 corruption approach rather than the A. T. R. Rahman,. “Legal and context in which it was operationalised. Administrative Measures Against Therefore, the focus is primarily on Bureaucratic Corruption in Asia”, in L. studying the technicalities of the V. Carino (Ed.), Bureaucratic Corruption in approaches applied in both these Asia: Causes, Consequences and Controls, countries and see if they can be effective Quezon City, JMC Press, 1986, p. 147. in a democracy like India. 39 Ibid., p. 151. 33

Pawan Kumar Adressing Political Corruption in India

provide essential levers to sway public and points out, because there is no good reason official opinion.”40 Within this approach for corrupt to move out of the “game” small and minor changes are expected to because those who are at the bottom of the bring big changes in the political system. corrupt system believe that even if they, as The proponents of the “big-bang” approach individuals, start behaving honestly, nothing are critical of this point of view and are of will change as long as most of their the opinion that corruption cannot be colleagues do not change their behaviour42 tackled through minor or small changes. Bo and in such situations collective action for Rothstein, for example, is critical of the the common good is impossible to establish approaches that insisted for minor as long as people try to maximize their institutional changes and believes that there expected utility. The implication of such an is no magical key or institutional device for approach is that it develops an fighting systemic corruption. He is of the understanding that a corrupt system cannot opinion that small changes are likely to be changed from below.43 aggravate the problem and what is required Despite regular efforts to fight is a “big bang” change. The problem with corruption, the success rate is very low and corruption, Rothstein argues, is that it seems one of the reasons is that while leaders do to be very “sticky”, which means that once a have the necessary means for launching system gets corrupted it becomes very successful policies against corruption, they difficult to take it out from the grip of usually have no incentives to do so as they corruption and “once corruption becomes are often the ones who stand to gain most systemic and the existence of widespread from rents in a corrupt system.44 Another corrupt practices becomes “common reason for the difficulty in bringing about knowledge”, we seem to have a case of an the change is that corruption has become a extremely robust inefficient equilibrium.”41 “standard way of life” and therefore “for the Corruption is a “sticky” problem, Rothstein average citizen, it seems that corruption has

40 World Bank, "Anti-Corruption in 42 Transition: A Contribution to the Policy Gunnar Myrdal has made a similar point. Debate." Washington D. C., The World (Gunnar Myrdal, Asian Drama: An Bank, 2000, p. 75. Inquiry into the Poverty of Nations, New York, Pantheon, 1968, p. 409) 41 Bo Rothstein, “ Anti-Corruption – A Big 43 Bang Theory”, Paper presented at the Bo Rothestein, Social Traps and the Problem Conference on Corruption and Democracy of Trust, Cambridge, Cambridge organized by the Centre for the Study of University Press, 2005. Democratic Institutions, Vancouver, 44 Michael Johnston, Syndromes of Corruption: University of British Columbia, June 8-9, Wealth, Power, and Democracy, Cambridge, 2007, p. 5. Cambridge Univ. Press, 2005.

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broken down all barriers and dictates of the different types of political institutions on the rules of life. That is not very different from degree of corruption in 38 African countries, saying that they interpret life in terms of Alence in his Political Institutions and corruption”45 and when life is viewed in Developmental Governance in Sub-Saharan Africa terms of corruption, it takes the form of concluded that a combination of electoral deeply entrenched belief system. According competition and institutional checks and to Rothstein, it is not easy to change such balances on executive power has a negative belief systems and hence in order to change effect on the frequency of corruption. In such deeply held systems of beliefs, other words, the study suggests that the something “big” and “non-incremental” is ideas and the practices of liberal democracy necessary. work counter to corruption.47 Sandholtz and Rothstein is critical of those Koetzle have shown in their study that the approaches that focus merely on the presence of liberal democratic institutions structural changes and on reducing the minimizes the chances of corruption. They incentives of corruption. A society that is are of the opinion that formal democratic committed to tackle corruption must have to structures facilitate citizen oversight and take up at least two important questions at control, and in a culture characterized by the outset. First, what types of structural democratic values, it is against normal reforms are necessary in order to reduce behaviour to act corrupt.48 According to corruption? Second, which types of Rothstein, such examples of anti-corruption processes will be successful to operationalize strategies suggest that the problem of such reforms? Most research on corruption corruption can be solved by merely “fixing has mainly focused on the first, structural the incentives”49 and when the institutions question suggesting to create new or to are created such that fear is greater than change existing institutions, while ignoring greed, corruption can be controlled. the second one about the change of However, Rothstein is of the opinion that processes. William Easterly, for example, has creating such institution is itself a collective suggested two measures to tackle corruption. action problem and it won’t be solved unless “First, set up quality institutions…Second, a society ceases to be dominated by corrupt establish policies that eliminate incentives agents. He argues that explaining corruption for corruption”.46 Examining the effect of and providing solutions to it on the basis of

45 UNDP, Human Development Report 2002 - 47 Ibid. Bosnia and Herzegovina, New York, United 48 Nation Development Program, 2002. Ibid. 49 46 Cf. Rothestein, op. cit., 2007, p. 10. Ibid., p.11. 35

Pawan Kumar Adressing Political Corruption in India

some universal values and institutions such Thus, a number of conditions are as transparency, democracy, independent required to ensure that anti-corruption judicial anti-corruption agencies or “good reforms in any context are effective, governance” is not enough because in sustainable and not easily subverted. These societies where these institutions function conditions need to be backed by having the effectively accountability will automatically necessary data to inform policy and strategy; be facilitated and problem arises only when comprehensive legal and institutional there are systematically corrupt institutions. safeguards to prevent corruption and protect “In the search for universal theories on public interest; and, the most difficult to causes and solutions concerning corruption, secure, the necessary political leadership and many researchers do not recognize the will to tackle corruption credibly and put in inbuilt inertia (or path-dependency) of place long-term reforms. It is clear that to be corrupt institutional systems”.50 Rothstein effective, national anti-corruption/integrity further argues that if new institutions have systems require more than a single agency to be created then the question of agency approach and they need to be supported by becomes central and the approach that an institutional matrix of legal and oversight advocates for structural changes often systems to ensure effective prosecution of ignores the kind of agents that are present offenders. A partnership approach, including and what strategies they use. He insists that active engagement by civil society and the for a successful reform process research media, is also important. Above all, the must start from identifying the roles and reforms need to be implemented by ethical interests of agents and broadened his idea by leaders who scrupulously observe rule of arguing that the research must begin by law. identifying the groups that are expected to The solutions suggested to tackle oppose the reform and how such opposition political corruption vary considerably as the can be dealt with and identifying those who perception of the problem and its causes can support the change and finding out the differ. Even when there is some agreement way they can be involved in the struggle over the nature and cause of the problem, against corruption.51 the solutions suggested from different

However, he does not make it clear what 50 Ibid., p. 12. kinds of changes he is talking about? 51 It seems that Rothstein is concerned The question of supporting or not about creating a support base for the supporting the change comes up only struggle against corruption by identifying when there is some consensus on what the interests of the agents i.e. whether the change is and hence this too can they support the change or not. become a collective action problem.

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quarters might vary. This happens because, and governments believe that launching anti- as Raymond. W. Pong argues, the debates corruption campaigns or ‘clean-up drives’ at about causality usually take place at a regular intervals may be politically theoretical level while the solutions that are advantageous for them. In 1989, the suggested are mostly outcome-oriented.52 National Front alliance led by V. P. Singh, defeated the Congress (I) government Politics of Anti-Corruption Campaigns almost solely on the issue of corruption by in India waging a nation-wide campaign against the The big scams that have come to light since Congress government. The Bofors case55 independence are enough to prove that was highlighted to such an extent that the corruption is deeply embedded in the Indian National Front went on to state in its political system and that anti-corruption election manifesto titled ‘Root Out measures taken so far have not been enough Corruption, Save Nation,’ that “Bofors, to curb corruption. These scams often corruption and Rajiv Gandhi are triggered off anti-corruption campaigns. The 56 synonymous.” Even during the 1991 anti-corruption campaigns in India have elections, the leader of the opposition been essentially political phenomena as they Bhartiya Janata Party (BJP), A. B. Vajpayee, serve as an instrument for the political criticised the election manifesto of Congress leaders to strengthen their position and (I) for not adopting a public stand on the 53 undermine that of the opposition. Gillespie issue of corruption and accused the and Okruhlik call this “corruption Congress (I) government for nursing a 54 cleanups”. While various anti-corruption corrupt system. agencies are engaged in their anti-corruption What is important to mention here is efforts, some of the Indian political leaders that the pre-election period provides ideal conditions for the political leaders to launch 52 Raymond W. Pong, “Social Problems as a Conflict Process”, in James Holstein such campaign and can be termed as “pre- and Gale Miller (Ed.), Perspectives on Social election cleanups”.57 Similarly there can be Problems: A Research Annual, Vol. 1, Greenwich, CT: JAI Press, 1989, pp. 59- other ideal political contexts in which 76. 53 Vinod Pavarala, Interpreting Corruption: 55 Elite Perspective in India, New Delhi, Sage, Bofors was a Swedish arms company 1996, p. 196. with which illegal defense deals were allegedly made by some of the top 54 Kate Gillespie and Gwenn Okruhlik, leaders of the Congress (I) government. “The Political Dimensions of 56 Corruption Cleanups: A Framework for National Front, “Lok Sabha Elections: Analysis”, Comparative Politics, Vol. 24, Manifesto”, 1989, pp. 1-2. No. 1 (October), 1991, pp. 77-95. 57 Pavarala, op. cit, pp. 199-200. 37

Pawan Kumar Adressing Political Corruption in India

politicians initiate anti-corruption campaigns have not necessarily been a continuation of like incumbent, post-succession and post- the previous regime. In 1985, for example, election periods.58 In an incumbent context, when Rajiv Gandhi succeeded Indira those who hold power do not try to discredit Gandhi as Prime Minister of India, he was the previous government but try to enhance projected as the leader of a new generation their own legitimacy. The incumbent with the image of ‘Mr. Clean.’ Thus, in this cleanups are also common in India which case the cleanup campaign did not start was evident when in 1990 the Chief Minister when the succession occurred, rather, it of Orissa, Biju Patnaik, expressed his started after Rajiv Gandhi came to power helplessness in running the administration and was used to build a popular mandate because of widespread corruption and went around the issue of controlling corruption.60 on to make a call to the general public to During the post-election cleanups the beat up corrupt officials and make them government tries to fulfil its campaign accountable. Though this step was widely promises and create conducive conditions criticized, the campaign started by Patnaik for its re-election. Such cleanups may be was intended to stir up public support for used by government to discredit the his government and present him as an anti- previous government. What is to be noted in corruption crusader.59 The post-succession all these cleanup campaigns is that they are cleanups refer to the steps taken by the meant to serve private political interests. government that take forward the campaign Gillespie and Okruhlik argue that these of earlier government so that a perception of cleanups are “a tool by which elites attempt continuity is ensured among the public. In to fulfil that most basic of political instincts, India, however, a slightly modified version self-preservation.”61 Thus, efforts by the can be seen as post-succession cleanups political elite against corruption are usually used to highlight the problem merely for

58 Gillespie and Okruhlik on the basis of a political gains associated with it without any survey of 25 Middle Eastern and North intention of making the system free of African countries delineated five political contexts in which politicians initiate anti- corruption. In this context, different corruption campaigns: post-coup, post- measures that are suggested to tackle revolution, incumbent, post-succession, and post-election. (Gillespie and political corruption often originate outside Okruhlik, op. cit) The post-coup and the political class. post-revolution contexts are not relevant for India. 59 “Call to “beat up” Corrupt Officials: 60 Biju’s Appeal Catching on”, The Indian Pavarala, op. cit, p. 199. Express, 20th December, 1990, p. 11. 61 Gillespie and Okruhlik, op. cit, p. 92.

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Effectiveness of Anti-Corruption Ayukta or the proposed Lok Pal in India. Institutions: A Critical Appraisal De-politicization refers to various activities There are theorists who have raised doubt undertaken by the government to eliminate over the effectiveness of the governmental or restrict competitive politics arguing that agencies and also citizen group campaign in political pressures created on the controlling corruption. Among others, administration causes corruption. Moral re- Carino and Guzman point out in their study armament means a kind of ethical or moral of corruption in Philippines that instead of revolution like that of the Cultural presidential investigating offices, purges, Revolution in China intended to bring about agency cleanups, and citizen campaigns, a far reaching changes in attitudes and morals. multi-pronged strategy involving procedural Ensuring accountability through proper changes, reducing discretionary powers of checks on abuse of power can be effective in officials, increasing transparency, effective fighting corruption. Reliance on monitoring system, salary reform is required privatization for fighting corruption basically to address the problem effectively.62 Robin derives from the belief that corruption Theobald, in the context of developing results from over regulated state and if state countries, discusses anti-corruption efforts control over economy is reduced corruption in terms of purges and campaigns, legal- would not follow. Apart from this, the administrative measures, de-politicization, power-sharing approach and the big-bang moral re-armament, accountability, and approach, discussed in this study, also privatization.63 Purges and campaigns are present useful methods for understanding meant to discredit political opponents and anti-corruption efforts in a holistic manner. gain support for the current regime. Legal Some of these approaches have been and administrative measures involve setting adopted either partially or fully in India but up of specialized bodies to fight corruption have produced limited results. The problem like that of ICAC (Independent Commission with anti-corruption efforts in India lies not Against Corruption) in Hong Kong and Lok much in the institutions created to tackle it but in the way this issue is approached. This 62 L. V. Carino and R. P. De Guzman, “Negative Bureaucratic Behaviour in the ineffectiveness is due to lack of sufficient Philippines: The Final Report of the research on the subject. Political corruption IDRC Philippine Team”, Philippine Journal of Public Administration, Vol. 23, is under-theorised, especially in India, which No. 3-4 (July-October), 1979, pp. 350- has led to partial or distorted understanding 385. of the problem. This has also created a gap 63 Robin Theobald, Corruption, Development and Underdevelopment, Durham, Duke in theoretical and empirical study of the University Press, 1990. 39

Pawan Kumar Adressing Political Corruption in India

problem and there is need to conquer this In the Indian context recent debates divide. It is important to see how on constituting an independent institution, connections can be drawn between Lok Pal64, to fight corruption clearly spells theoretical and empirical study of out the gap between theoretical and corruption, lack of which has adversely empirical understanding of corruption in affected systematic studies on corruption in India. Various studies have shown the India. New anti-corruption institutions are ineffectiveness of a similar body, Lok created and new reforms are introduced Ayukta, constituted in some of the Indian without doing proper research on the states. In a study of anti-corruption efforts subject, which results in the introduction of in the state of Andhra Pradesh, Vinod inefficient institutions and reforms. Existing Pavarala asserts that the Lok Ayukta indices of corruption too do not guide constituted in the state as the nodal body to effective anti-corruption strategy. There is a fight corruption, suffered with “a high dearth of effective anti-corruption strategy, degree of politicization, both instrumental without which no reform can work. In order and symbolic.”65 Though the Lok Ayukta to come up with effective anti-corruption undertook investigations against some reform process there is a need to draw ministers, they had only symbolic connections between theory and empirical consequences. Pavarala has shown in his research, as both form important parts of study that the effect of Lok Ayukta in the research on corruption. This becomes controlling corruption was minimal.66 even more difficult in the case of corruption Studying the history of Indian political because of its hidden nature. In this context system in terms of the approaches discussed the paper brings out the need of democratic in this paper, it can be found that there are audit as a tool to bridge the gap between the

theoretical and practical understandings of 64 The Santhanam Committee in 1964 had political corruption and emphasises on recommended that a permanent government body is important to be conducting proper research, probing causal constituted to deal with the problem of relations, using efficient techniques and corruption. In 1966 the Administrative Reforms Commission recommended the starting off processes of debates and establishment of a Lok Pal at the central awareness to enhance effective people’s level and Lok Ayaktas at the state level. A Lok Pal bill was introduced in the participation, which is crucial for carving out Parliament in 1968 and since then it has an institutional mechanism of accountability been introduced several times but has failed to become a reality. best suited to tackle political corruption. 65 Pavarala, op. cit, p. 190. 66 Ibid., p. 188.

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serious flaws in the anti-corruption approach work effectively and efficiently by just adopted by the Indian government. Though bringing them into existence. It is equally institutions have been created to tackle important that it gets integrated into the corruption they often have overlapping domain of civil society. The popular support jurisdiction and cannot function for Lok Pal lacks a sound conceptual base independently. The power sharing model in and is actually unstructured. It is important terms of decentralization and coalition to understand that a successful fight against politics too has not been effective in corruption is not in place not because there checking abuse of power by political leaders. is any dearth of anti-corruption laws but Recently one of the solutions for addressing because there is lack of political will. A corruption in India that received popular successful fight against corruption requires a acceptance was the constitution of the Lok critical probe into the link between the Pal, which is similar to the single-agency political institutions and corruption and approach applied in Hong Kong and there is need to acknowledge the link Singapore. But there is a need to examine between reducing corruption and the whether such institutional changes or the broader process of democratization. Though creation of a strong anti-corruption agency the Lok Pal Bill is a welcome initiative for can become an effective tool to fight the future of Indian democracy, in the sense corruption in India. The Lok Pal is backed that the government and civil society has with an expectation to overcome the come together on an issue that requires deficiencies of existing institutional setting, urgent attention, it has lost its democratic which is often charged with either fervour in whatever that followed thereafter. inefficiency or lack of autonomy or both, to Questions have been raised on the look into the matter of corruption. The huge constitution of the drafting committee of the support that the Lok Pal gathers is mostly bill. It has been alleged that the “team because of the fact that the state or the Anna” does not represent civil society and system has not been efficient enough in the government representatives in the punishing the corrupt especially in high drafting committee do not represent diverse profile cases and it is expected that the Lok opinions in the Parliament. Even questions Pal would bring in efficiency and have been raised on the democratic nature effectiveness as it would be an autonomous of the method of protest and agitation body. adopted by the “team Anna” to push their It is, however, important to realise demands. Most importantly, questions have the fact that any institutional design cannot been raised directly on the democratic nature

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Pawan Kumar Adressing Political Corruption in India

of the Jan Lok Pal67 and it has been argued Supreme Court and can be removed by a that the Jan Lok Pal would be a kind of five-member bench of Supreme Court on “super-institution” that will undermine the charges of misconduct. In response to the existing judiciary system whose sceptic’s idea of Lok Pal’s inability to accountability cannot be ensured. It is undertake such extensive responsibilities, the further argued that since it engulfs all supporters of the Jan Lok Pal draw attention existing anti-corruption agencies and brings to the integrative nature of corruption and within itself overriding powers, it becomes argue that since the matters relating to unsuitable for a functioning democracy like corruption are often interrelated and even India. The purpose of the Lok Pal should be several other matters are actually results of to improve governance and empower citizen corruption, it would be pointless to have a but it is argued that such purposes would separate institution to deal with different remain unfulfilled through the present Lok aspects of corruption. They have also Pal, as there is centralization of power. focused upon the structural arrangement In contrast to the above viewpoint instituted in Lok Pal which will provide a regarding the authoritative nature of Lok systemic process to deal with the grievances Pal, there is another way to look at it which of the people and these grievances will go is demonstrated by those who have drafted through this structure and the Lok Pal will the Jan Lok Pal Bill, who argue that the Jan be restricted to administrative and Lok Pal has powers to only investigate and supervisory control over this structure. The start the prosecution and it has no judicial bottom line of the supporters of the Jan Lok powers, as the judgment will be given by the Pal Bill is that leaving everything on the ordinary courts. For them the proposed bill elected representatives is not democracy in is intended to just keep the Lok Pal away the real sense of terms; true democracy from political pressures. The question of exists when people take part in decision accountability of the Lok Pal is addressed by making and decisions reflect their true arguing that whatever order is passed can be interests. In other words people should take reviewed in higher courts and the members decisions themselves. of the Lok Pal will be answerable to the The discussion over having a new institution like Lok Pal led to the debate

67 The “team Anna”, that strongly considering two things — whether there is advocated for constituting a Lok Pal, actually a need of a new law to tackle drafted a Lok Pal Bill and presented it to the government of India for corruption or the existing laws are sufficient consideration which was christened — and a new law is not required. The popular “The Jan Lok Pal Bill”.

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perception, as well as according to the that institutionalized or systemic corruption government, there is a need of a new law but cannot be controlled effectively through at the same time it is also important to legal and police measures and the objectives consider that if a new law on establishing a of anti-corruption effort should be to body to tackle corruption is required, is develop an atmosphere of reform that may there any point in having a new law with old be consolidated by law. 68 The present deficiencies? If the institution of Lok Pal is approach of the government and civil created, it has to have something more than society to tackle the problem is subjective in the existing institutions responsible for nature, in the sense that it focuses on tackling corruption because creating a new individuals who indulge in corrupt acts. The institution with old deficiencies won’t be of problem lies in the fact that corruption is much help. If the Lok Pal is not empowered seen as problem of individuals, which makes enough to prosecute the guilty then it will the approach to tackle corruption reactive again develop the feeling of immunity and the solution that is generally provided is among the corrupt, as it will again be the old restricted to remove the official from the legal process that does not give the desired office and in some cases even legal results. The discussion so far raises few punishments are given to the wrong doer. questions in this regard — will the Lok Pal Even the political class tries to socialise be able to perform the huge responsibilities? people in such a way that they start Will it not again fall into the web of conceiving corruption as a problem of just institutions and would gradually start facing few individuals and consider that justice is the same problems that other institutions done when those individuals are punished or face? Will it actually serve the larger goal of removed from the office that they hold, preventing corruption or will it just reduce which is a false belief that people have. It is to a punishing authority? In other words, important to realise the fact that corruption does it have the right kind of approach results only when there are loopholes in the towards the problem of corruption? And system and it is the system that provides finally, is there any other alternative to act opportunities for corruption making it a upon? systemic problem. The popular approach The above discussion demonstrates overlooks the systemic nature and the that a strong anti-corruption law is effects of corruption. The present Lok Pal important but not sufficient to tackle 68 political corruption in India. This view is Simcha B. Werner, “New Dimensions in the Study of Administrative also shared by Simcha Werner who argues Corruption”, Public Administration Review, March-April, 1983, p. 151. 43

Pawan Kumar Adressing Political Corruption in India

or the Jan Lok Pal is also based on the same also weakens government’s ability to deliver flawed approach which focuses only on on various other services like health, punishment of the corrupt and this education and welfare services.69 In such a approach is followed by the government, situation economically and politically civil society and people, which actually disadvantaged suffer from the consequences highlights the fact that the way the nature of of corruption as they are largely depended corruption is understood is problematic. on public goods. Various scandals and scams Corruption, within this understanding, is that have been exposed show that even seen as a problem of just few leaders or when government actually spends money on officials and not as anti-people or anti- social programs to benefit the poor, the human which is one of the reasons for possibility of such projects being hijacked by sustenance of corruption. well to do Indians is very high. A human It is important to understand that rights perspective enables the policy makers corruption takes away the rights of the to understand the impacts of the anti- people as citizen of the nation. Corruption corruption policies from the point of view puts at stake the basic rights of life, liberty, of the disadvantaged. Though corruption equality and dignity, which constitute the affects all those who experience it, its impact basic human rights of people and hence it on the disadvantaged is worst. For the also becomes important to consider groups like minorities, indigenous people, corruption as violation of human rights. migrant workers, disabled people, refugees, Considering corruption as a violation of prisoners and poor, corruption reinforces human rights can positively work towards their exclusion and discrimination. It also empowering the people and would add happens that because of their vulnerability impetus to the on-going struggle against they become easy victims of corruption.70 corruption in India. High levels of With such consequences of corruption in any society disable the state corruption there can be no two opinions to from fulfilling its duties to respect, protect the fact that its existence in a democracy and fulfill the human rights of its citizen. makes a state less democratic. However, Corruption undermines the ability of states 69 James T. Gathii, Defining the Relationship to comply with its human rights obligations between Human Rights and Corruption,2010, because it erodes the capacity and http://ssrn.com/, accessed on 11/09/2011 confidence of a state to deliver services to 70 Corruption and Human Rights: Making the public. Corruption not only depletes the Connections, International Council on Human Rights Policy, Switzerland, resources available for public spending it Versoix, 2009.

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whether there is a negative correlation country’s political system or by just looking between corruption and democracy is at the fact that a country is democratic in the something on which theorists have different present time. How corrupt a country is, can opinions. Some recent studies of be decided only by looking at whether or not Transparency International and Freedom it has been democratic for decades. He is of House on the effect of regime type on levels the opinion that countries with long of corruption, revealed that there is a duration of democracy had some impact on negative relationship between reducing corruption.72 In the recent past democratization and corruption but this with growing social movements and non- correlation is not very strong as this is a party political process, Indian democracy is statistical relationship and not necessarily a being challenged and is also being redefined. causal one.71 Paldam too believes that direct The established structures of governance are effect of democratization on corruption is being questioned and there is a growing spurious. In his study he found that demand for bringing about basic structural corruption would generally decrease with changes in the Indian political system. While increasing levels of democracy, but this there is wide consensus on the nature, covariance depends upon the level of causes and consequences on issues like democracy or upon the stage of democratic poverty, hunger, and other social and transition. In the similar vein, through a political problems, there is no such cross national study on corruption, Daniel consensus on the issue of corruption, which Treisman came up with the hypothesis that weakens any struggle against corruption, and democratic countries with freedom of press hence demands concerning the anti- and vigorous civil society can have greater corruption reform that originate outside the ability to expose corruption and thus will state structures have very little influence on have lower levels of corruption, as freedom the policy makers. The recent anti- of press and association help in monitoring corruption movement led by Anna Hazare public officials and exposing abuse of was a rare effort in the history of social power. Interestingly the study found that the movements in India since independence that relationship between democracy and spurred countrywide struggle against corruption can be established not by just corruption. This movement can be seen as a looking at the present condition of a positive effort in terms of raising awareness

71 Inge Amundsen, “Political corruption: 72 Daniel Treisman, “The Causes of An Introduction to the Issues”, Working Corruption: A Cross National Study”, Paper, Bergen, Chr. Michelsen Institute, Journal of Public Economics, Vol. 76, 2000, 1999. pp. 399-457. 45

Pawan Kumar Adressing Political Corruption in India

among people regarding widespread Democratic audit is all about conducting corruption in the functioning of proper research, probing causal relations, government, which was lacking till now. It is using efficient techniques and starting off important to understand that without such processes of debates and awareness to consciousness raising, efforts to tackle enhance effective people’s participation, corruption will have minimal effect. which is crucial for carving out an institutional mechanism of accountability Democratic Audit as a Conceptual best suited to tackle political corruption. Toolkit The research comes up with the need for the In order to come up with effective desirability of democratic audit or assessment anti-corruption reform process there is a of Indian democracy and contends that a need to draw connections between theory well designed democracy assessment has the and empirical research, as both form potential of finding out where reform is important parts of the research on most needed and where exactly the corruption. This becomes even more loopholes are. It is argued that assessing difficult in the case of corruption because of democracy is a prerequisite for bringing its hidden nature. This paper tries to bring about any effective changes in the working the issue of corruption within the realm of of democracy. democratic theory and emphasises that true democracy is when people have effective Recent research on corruption has control over the decision making process. proved that existence of corruption However, in a representative democracy like transcends all political systems and India decisions are taken by the ideologies and causes of corruption cannot representatives chosen by the people and be associated with the level of development hence for people democracy is realised when or the ideological systems that govern a they are able to exercise control over these nation. This paper questions the popular representatives and hold them accountable. explanations for existence of corruption and In this context the need of fresh assessment argues that the basic problem with such of democracy is proposed. Democratic audit explanations is that they assume that is proposed as a tool to study and corruption can be studied as a understand political corruption in India ‘phenomenon’ overlooking the underlying which can be instrumental to bridge the gap complex ‘processes’ of corruption. The between the theoretical and practical paper attempts to highlight the systemic understandings of political corruption. nature of corruption by arguing that the

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problem lies in the system itself and that corruption occurs because there are loopholes in the system. There is lack of a comprehensive strategy against corruption which is because of partial or inadequate research on the subject. Democratic audit, as a conceptual toolkit, can contribute towards raising awareness about the problem. It is important to understand that the purpose of democratic audit is not to set out precise proposals or blueprints for change and the purpose of the audit is restricted to consciousness raising, influencing public debate, agenda setting for reform and program evaluation. Apart from opening up new questions and considerations to be debated at practical level, the purpose of this paper is also to recommend a fresh direction for undertaking any anti-corruption policy and research.

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Carla Luís Do Globalization and Global Justice go hand in hand?

Do Democratisation and Global Justice go hand in hand? The case of Timor-Leste

Carla Luís1, University of Coimbra, Portugal

Abstract

eace missions often focus on statebuilding policies, being statebuilding a key aspect in these interventions. However, beyond or parallel to the democratisation process, questions regarding global justice arise. In this paper we are going to analyse the situation in Timor-Leste. We are going to argue P that, beyond the classic democratisation approach, there are a number of factors that still have to be addressed, and these can be intrinsically related to democracy. We will conclude that the focus of the international interventions, especially within multi-dimensional missions and, therefore, the priorities of the host state, should go beyond the formal democratisation aspect. Social and economic factors, much related to the idea of global justice, should also be present and be a key aspect and result of these interventions.

Keywords: Timor-Leste, peacebuilding, statebuilding, global justice

1 Carla Luís, 33, Lisbon, is a PhD Candidate at CES – Centre for Social Studies, University of Coimbra, in the PhD Programme International Politics and Conflict Resolution, with the thesis project “UN peacebuilding and the role of electoral systems: the case of Timor-Leste”. She holds a Masters’ Degree in Human Rights and Democratisation (EIUC, Venice) and is graduated in Law by the Law Faculty of the New University of Lisbon. She is a researcher in the Project “Peacebuilding and sustainable peace: UN missions in Timor-Leste and Portugal's contribution”, funded by the Portuguese Foundation for Science and Technology. Her interests are electoral systems, peacebuilding, post-conflict and the Southeast Asia region. This research is funded under the PhD Scholarship SFRH/BD/79096/2011, granted by the Portuguese Foundation for Science and Technology.

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Introduction most used forms of intervention in armed conflict situations. eacebuilding interventions, Peacebuilding interventions often focus on particularly within the UN, focus statebuilding approaches. This can be seen mainly on statebuilding policies, with as a recurrence from the phenomena of P a great emphasis on democratisation weak states (Chandler, 2010: 163), which, and institution building, aiming at building a after the fall of the Soviet Union, and a the democratic state that could provide post-9/11 world, started to be perceived as a protection and proper living conditions to global security problem by the international their citizens. As we are going to argue in community (Robinson, 2007). With the this paper, this is not always the resulting development of the Responsibility to Protect outcome. In Timor-Leste, the UN (R2P) doctrine, states are understood to intervention focused mainly on institution have the ultimate responsibility in the building and the creation of the liberal state international system to protect individuals democratic institutions. However, this has (Chandler, 2010: 163). Statebuilding as an not led necessarily lead to global justice intervention instrument also derived from within the new state. The social situation in the Western perspective that violent the country demonstrates that there are conflicts are less likely to emerge in liberal severe problems, especially regarding the democracies (Friis & Hansen, 2009) and social conditions of the population. We can became one of the priorities in international therefore conclude that liberal state interventions. institutions do not, by themselves, lead to There is no undisputable definition of global justice. There is the need to put extra statebuilding (Carton, 2008: 2). However, care in more substantial factors that just the most frequent approach, rather than formal democratic institutions and formal focusing on people, focuses on building democratic processes, in order to achieve the institutions of governance (Chesterman, desired results. 2004). Chandler defines the objectives of statebuilding as “constructing or Peace operations reconstructing institutions of governance Peace operations are one of the most capable of providing citizens with physical important instruments to address violent and economic security” (2006: 1). Richmond conflicts after the Cold War period, being notes that the rationale behind statebuilding the UN its primary actor (Chandler, 2010: is that “liberal democratic and market 166; Pushkina & Maier, 2012). In the reform will provide for regional stability, document “An Agenda for Peace” leading to state stability and individual (A/47/277 - S/24111) a solid framework for prosperity” (2009). This is achieved through UN peacebuilding is provided. Peacemaking the creation of entities that are in line with and peacekeeping are required to “halt the dominant economic and social policies conflicts and preserve peace once it is and also accountable to the international attained. If successful, they strengthen the community (Carton, 2008: 6), being opportunity for post-conflict peace-building, globalisation seen as the key propagator of which can prevent the recurrence of peace (Richmond, 2004: 137). Market violence among nations and peoples economy is also a key aspect on this process (A/47/277 - S/24111: 55). The UN Charter (Duffield, 2001; Paris, 1997; Pugh, 2005; does not expressly mention peacebuilding. Richmond, 2005). Therefore, one of the Its classic instruments for intervention are aims of statebuilding policies is to have the diplomatic resolution of violent conflicts states that are “able to deal with (Chapter VI) and the clause of collective globalization, namely [states] that [are] security, foreseen on Chapter VII, which flexible and able to draw on social resources allows the use of force. However, to cope with change” (Robinson, 2007: 11). peacebuilding has become one of the UN In this approach, statebuilding policies comprise institution-building (Carton, 2008), Carla Luís Do Globalization and Global Justice go hand in hand?

which can be defined as ‘the creation of new within a nation-state (Rawls, 2005). Justice government institutions and the would, therefore, rather be something strengthening of existing ones” (Fukuyama, internal and non comparable or applicable to 2004). These institutions need to be sound members of different societies, that citizens and to be perceived as legitimate by the would seek within their sovereign state population, in order to avoid the risk of (Nagel, 2005: 2). creating “phantom states” with resources Still in accordance to Hobbes, in the absence but whose governing institutions might not of a sovereign power that could provide have social or political legitimacy (Chandler, assurance through some form of law, 2006: 9). A sustainable peace requires a individuals would be left to their own broader participation in the peacebuilding resources, confined to the sole defensive and statebuilding process (Adekanye, 1998). objective of self-preservation, without being Within this framework, the UN has carried able to pursue justice for themselves (Nagel, out extensive mandates, which include the 2005: 2). Sovereignty can therefore be seen “organisation of democratic elections, as an “enabling condition” to grant stability guarantee of security, organisation of to just institutions, through which transitional governments, constitutional individuals should be able to seek for justice reform, development of civil society, (Nagel, 2005: 2). humanitarian relief, rehabilitation, rebuilding infrastructure, reactivating agriculture, (...) in The link between democracy and global other words “international social justice: democracy as a normative engineering” (Korhonen, 2001: 496). standard for global governance

The primary role of the state and the Dingwerth (2010) suggests that we should concept of global justice rethink the link between democracy and global justice and that in the concept of In the international scene the state is meant democracy we should rather emphasize the to be the primary actor. It concentrates democratic values of inclusiveness, political legitimacy, being also the main transparency, accountability and deliberation space where to seek for justice (Nagel, 2005: (Dingwerth, 2010: 21). Dingwerth departs 1). However, when and where the nation- from the concept of democracy and state for itself is not sufficient, questions of wonders how can it act as a normative global justice and governance may arise standard for global governance (2010: 1). He (Nagel, 2005: 1). argues that, despite the fact that a higher The concept of global justice can have many claim for global governance and global approaches. Nagel (2005: 1) points out two democracy exists, there is still a lack of both different aspects: “the international “structural preconditions for it to actually make requirements of justice include standards a difference”, being these “rarely addressed governing the justification and conduct of by global democracy scholars and activists”. war and standards that define the most basic This is what Dingwerth calls the “structural human rights” and “socioeconomic justice” preconditions for realizing democracy at a world on a world scale. Adopting a statist scale” (Dingwerth, 2010: 14). This does not conception, he aims at establishing a relation mean that we should not demand more between justice and sovereignty, focusing as democratic global governance, but rather well on “the scope and limits of equality as a that this should have a more substantial demand of justice” (Nagel, 2005: 1). In this content. Dingwerth suggests that the core of analysis, Nagel goes back to Hobbes and global democratic governance should consist Rawls. Hobbes defended that justice could of three dimensions, namely “inclusiveness, only be achieved within a sovereign state. democratic control and discursive quality” Rawls argued that one of the components of (Dingwerth, 2010: 3). justice would be the equality among citizens,

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This author defines transparency as “the participate more. Literacy and primary extent to which individuals who may be education have here a great role. significantly affected by a decision are able Civil and political rights are important, but a to learn about the decision-making process, democratic public law should also include including its existence, subject matter, “health rights, social and economic rights, structure and current status” (Dingwerth, cultural and pacific rights” (Dingwerth, 2007: 44). However, an extremely important 2010: 19). Held argues that “If any of these posterior step is that “those to whom bundles of rights is absent from the information is made available can do democratic process, it will be one- sided, something with that information” incomplete and distorted” (1995: 190). (Dingwerth, 2010: 13). As obstacles to it, Political rights are not sufficient per se, as and also to inclusiveness and discourse “unless other rights clusters are recognized quality, the author points out that “illiteracy there will be significant areas in which large rates in some parts of the world exceeding numbers of citizens (...) will not be able to 50 per cent, with Internet access virtually take advantage of these equally in practice” unavailable in others, and with language (Held, 1995: 191). skills, economic knowledge and political Krishna and Booth also underline the need education distributed extremely unevenly to build institutional links, to promote and across the globe, realizing transparency in a facilitate accountability between poor meaningful normative sense is indeed a far- populations and the institutions of fetched dream” (Dingwerth, 2010: 13). democratization (2008: 154). These should There would be three main areas with be widely known and accessible, as “political immediate relevance for the democratic parties, local governments, NGOs, and process: subsistence, health and education other civil society organizations (...) are often (Dingwerth, 2010: 14). Democracy depends weak to virtually nonexistent, especially in upon a minimum level of subsistence, so rural areas of developing countries, where that people can have secured lives, that can large parts of the poorer populations reside. afford them to engage in political life Under such circumstances, citizens are (Dingwerth, 2010: 7). This can also be considerably handicapped in terms of access understood as the freedom from want and information” (Krishna and Booth, 2008: (United Nations General Assembly, 2005: 7), 152). which was at the core of the Universal Declaration of Human Rights (United Timor-Leste and the UN Missions Nations General Assembly, 1948). Health is also equally important, reinforced Timor-Leste has probably been the first state by the fact that, if the right to health is note to be built from the beginning through a UN generalized, it risks threatening the intervention (Gorjão, 2004: 1044), with a representativeness of some specific and UN mandate that included even the control vulnerable groups (Dingwerth, 2010: 7). This over the territory. It has been pointed out as includes not only the right to access to a true test to statebuilding policies, in its health as well as the mitigation of health different aspects (Richmond & Franks, 2007: risks (Dingwerth, 2010: 15). The impacts of 1). The United Nations Transitional deficient access to health can also be seen in Administration in East Timor (UNTAET) – indexes such as the life expectancy at birth from 1999 to 2002 (Security Council or the child mortality rate, which can have Resolution 1272) – constitutes an example huge disparities from country to country. of some of the most ambitious UN Education is also an extremely important statebuilding missions (Carton, 2008: 4; factor for democracy. Krishna (2008: 13) Korhonen, 2001: 497). UNTAET was concludes that education has greater effects authorised under Chapter VII of the UN on democracy than wealth, as there is the Charter and given a broader mandate than trend of more educated people to have a many of UN missions in the 1990s. greater demand for democracy and to Carla Luís Do Globalization and Global Justice go hand in hand?

UNTAET was created in 1999, through the 2007: 2). This new mission will have the Security Council Resolution 1272(1999), of direct influence of these incidents, which left 25 October and lasted until May 2002. It had profound marks in the Timorese society and all the authority over the territory, including have strongly affected the statebuilding all the administration of the territory and all process so far going on (Richmond & legislative and executive powers, including Franks, 2007: 2). justice administration (Gorjão, 2004: 1044) UNMIT, the United Nations Integrated and the maintenance of order (Richmond & Mission in Timor-Leste, was the last mission Franks, 2007: 5). UNTAET exercised these to be created in Timor-Leste. It was de facto powers in the period of transition to a established in 25 August 2006, through the independence (Gorjão, 2004: 1044). It was Security Council Resolution 1704/2006 building a state from the beginning (Pureza, (UNSC, 2006). It was created by an initial Simões, José, & Marcelino, 2007: 20), where period of six months and has subsequently all big political options also gave rise to been extended, and its mandate has strong social conflicts. It is a model of post terminated in 31 December 2012. conflict reconstruction tout court (Pureza et al., 2007: 21). UNTAET was considered as UNMIT had, for the first time, the objective having a great success, although this is still of being an “integrated mission” and was disputable (Alldén & Amer, 2007: 1055; expected to articulate the activity of all UN Gorjão, 2004: 1055; Lothe & Peake, 2010). agencies in Timor-Leste (Pureza et al., 2007: 22). It was multidimensional and should After UNTAET’s contribution to the have also addressed the causes of conflict, independence of Timor-Leste, in 20 May of such as economic and institutional 2002 (Richmond & Franks, 2007: 2), reconstruction, including the reform of the UNMISET (United Nations Mission of police, army, justice and electoral system Support to East Timor) was established and (Hegre, Hultman, & Nygard, 2010: 3). lasted from May 2002 to May 2005. UNMISET was established through the It was expected to “support the government Security Council Resolution 1410(2002), by on consolidating stability, on implementing a an initial period of 12 months, that was culture of democratic government and to further extended. It intended to articulate facilitate the political dialogue between the UN presence with the statute of several Timorese sectors, in order to ensure independent country already achieved a national reconciliation process and to (Alldén & Amer, 2007: 6; Richmond & promote social cohesion” (United Nations Franks, 2007: 5), keeping nevertheless a Security Council, 2011). It had as main strong UN presence, as the maintenance of targets the judicial system, the justice the Special Representative of the SRSG institutions, ensuring a true rule of law shows (Pureza et al., 2007: 21). UNMISET (Grenfell, 2009) and a true peace process addressed mostly institution building (Pureza with an effective transitional justice. et al., 2007: 20). The UN intervention was initiated in the The UN presence was supposed to end with territory with the organisation of a this mission. In 2005 UNOTIL (the United referendum (1999), followed by elections for Nations Office in Timor-Leste) was created, the Constitutive Assembly in May 2002. For in order to make the follow up of the UNTAET, the adoption of a Constitution remaining action, so as to smooth the end of was a prerequisite for the independence its mandate in 2006 (Richmond & Franks, process (Ingram, 2012: 10). UNTAET had 2007: 2). However, a new situation of to decide when and how to hold elections turbulence, arising from within the Timorese and which positions should be elected army, but quickly widespread to the whole (Galbraith, 2003: 211). It started with the country (Scambary, 2009), led to the creation Constituent Assembly, for which the of a new mission (Richmond & Franks, electoral mechanism used narrowed popular

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representation, by using an electoral mixed (Gorjão, 2004: 1046), which led to a poor system, combining proportional implementation and lack of soundness of representation with a circle of majoritarian the proposed model (Jones, 2010) and few representation, resulting in a lack of security guarantees (Dougall, 2010). accountability (Ingram, 2012: 12). In 2007, As Richmond points out, Timor-Leste is a following a violent conflict eruption, there remarkable case of hybridism, where the were presidential and parliamentary elections local structures and hierarchies coexist, and, in this context, a major reform of the sometimes in parallel levels, sometimes even electoral laws took place. In 2012 another prevailing over the institutions of liberal electoral cycle, with both presidential and peacebuilding (Richmond, 2011). Many local parliamentary elections, was held. It was leaders and local institutions remain with precisely the 2012 electoral cycle, that served their traditional legitimacy, with different as a test to the maturity of the national levels of democracy and accountability institutions and, therefore, helped to (Risley & Sisk, 2005: 26). Although their determine the end of the UN peacekeeping legitimacy can be questioned (Risley & Sisk, mission (United Nations Security Council, 2005: 26), the fact is that local leaders are 2012: 3). more accepted than the liberal state institutions, as tradition structures coexist Critical appreciation and sometimes prevail over the state- building structures (Richmond, 2011). An important aspect regarding the UN In the international intervention that took intervention and the new state of Timor- place in Timor-Leste, the formal institutions Leste was the need to ensure the soundness of the liberal state were given a major of the institutions created, to guarantee a importance and there was little consideration true sustainability of the new state to reflect the social organisation of the (Croissant, 2008). At the time of country on these. The statebuilding model independence, there were barely any was adopted without taking into account the democratic institutions at the local level local experiences, being therefore distanced (Risley & Sisk, 2005: 26) and UNDP, along from the majority of the population, with an with the central government, have put in exception to the local elite based in Dili. place the first local elections in 2004 and Timor-Leste in numbers 2005 (Risley & Sisk, 2005: 26). The setting of democratic institutions Despite the long presence of the UN proved to be a challenge for the UN missions in the territory and the big effort in (UNTAET), as there was little information the democratisation process, the social and it was also not clear whether the reality in Timor-Leste is still very challenging. Timorese and international community th preferences were the same (Risley & Sisk, Timor-Leste is in the 147 place, out of 187, 2005: 27). Therefore, many traditional in the World Human Development Index structures were maintained from the 2012, with about 37,4% of the population previous regime. It was recognised, even by living with less that $1.25 per day (UNDP, UNTAET officials that, in the beginning, 2012). According to UNICEF, 58% of the the UN achievements in building democratic children suffer from malnutrition, a local structures below the national level were percentage that was of 54% in 2011 (IRIN, quite limited (Blanco, 2010: 187; Risley & 2011). Timor-Leste is the third Asian Sisk, 2005: 27). country with more people suffering from According to some authors, one of the flaws malnutrition, despite the nutrition of the UN interventions in Timor-Leste was programme put in practice by the government since 2004 (IRIN, 2011). There the lack of local realities’ integration (Blanco, 2010: 185; Brown, 2009; Richmond & is a “an inter-generational chronic and silent Franks, 2007: 4) from the beginning epidemic of malnutrition [stunting] as well as [a 2009-2010 national average of] 18.6 per Carla Luís Do Globalization and Global Justice go hand in hand?

cent acute malnutrition [wasting]”, which Despite these facts, Timor-Leste comes is also increases the risk of “premature death the sixth world fastest-growing economy in and irreversible mental and physical 2013, according to The Economist (A., disability”, according to the World Health 2013). In February 2013 the oil fund reached Organisation (IRIN, 2011). US $11.8 billions, according to Radio Timor- According to the data available from “2009- Leste. The World Bank representative said 2010 Demographic Data survey”, the that the growth rate would likely stand on numbers are striking. 38,8% of under-five the two digits in 2014 and that there is the children has anaemia, so do 21,9% of risk of creating an excessive oil-based women. 18,6% of under-five children is economy, harming the remaining sectors. acutely malnourished and 58% are (Lusa & Dinheiro Digital, 2013) It has also malnourished chronically. 52% of under six- called the attention for the risks of misusing month old babies are exclusively breastfed those funds, which can lead to corruption and among stunted children, 64,7% ate very and undermine the society (Lusa & Dinheiro small at birth. 21% of the babies are acutely Digital, 2013). According to the Corruption malnourished at birth and there is 64,5% of Perceptions Index 2012, Timor-Leste was in mothers of stunted children with BMI less 113th place, in a total of 174 countries than 18.5 (thin). There are 27,1% of women (Transparency International, 2012). A study overall with BMI less than 18.5 and only by the Anti-Corruption Commission showed 79,2% of children had consumed vitamin A that 50% of the Timorese do not know what rich foods in previous 24 hours. Only 35% corruption is (Lusa & Dinheiro Digital, of children had received de-worming 2013). treatment in previous six months (IRIN, In 2009, 41% of the population was below 2011). the poverty line and in 2007 the country was Tuberculosis is still the first main disease in the world’s 107 regarding the Gini index, the country and malaria and dengue are still which measures the degree of inequality in very frequent (Alvarez, 2012). In 2012 the the distribution of family income in a infant mortality rate was of 41.40, the 56th country (CIA, 2013). highest in the world, with a maternal mortality rate of 300 deaths/100.000 live Conclusions births, as of 2010, the 37th highest in the world (CIA, 2013; WHO, 2013). According As we can see from the previous data, to the WHO, the infant mortality rate in despite having had a UN peace mission for 2010 was of 46 (WHO, 2013). more than a decade, the situation in Timor- Timor-Leste comes in the 10th place in the Leste is still very challenging. Areas like list of countries at risk of a coup d’état in health, nutrition, child mortality, political 2013 (Ulfelder, 2012b). This index is stability or even corruption control still calculated according to an algorithm taking present really poor indicators. Inequality is into account multiple factors (Fisher, 2013; also widespread, with almost half of the Ulfelder, 2012a). In the case of Timor-Leste, population living below the poverty line, the risk in the country increases due to “high with great income disparities, and despite the poverty and hybrid political authority high rates of growth in the Timorese patterns”, as well as the past of social unrest economy. and attacks to the former President of the The outcome of the UN multidimensional Republic and Prime-Minister (Ulfelder, peace mission, in this aspect, risks not being 2012b). Nevertheless, Ulfelder considers that positive. The UN policies put in practice in if the country “makes it through 2013 the territory have, by themselves, and without another coup attempt, though, its through the new state that has been created, estimated risk should drop sharply next produced an outcome that does not meet year” (2012b). the requirements of global justice, or of a more composite notion of democracy, as

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defined above. Extra care should have been put in more substantial aspects, also relevant not only for the citizens’ daily life, but also necessary to build a more significant and richer democracy, in terms of citizenship and participation. We have to conclude, therefore, that the statebuilding policies, aiming at creating democratic institutions, do not always achieve the goals of global justice. In the same way, it has to be said that UN statebuilding policies, as well as the new state created, do not necessarily lead to global justice, in the sense of more internal equality, nor do they mean a wider conception of democracy. In the case of Timor-Leste, the UN presence, which lasted for more than a decade, is considered by many as an example of success. However, looking at more substantial indicators, as well as their trends, can prove to be disappointing. One should, therefore, rethink the concept of democracy that is being put in practice, as well as what should be the scope and outcome of the allegedly democratic institutions created. Carla Luís Do Globalization and Global Justice go hand in hand?

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The Impact of Foreign Aid on Human Rights Violations: Innocent Flower or the Serpent under it?

Natalie Sophie CEBULLA1, University of Mannheim, Germany

Abstract

espite the vast amount of literature on the effects of foreign aid on democratic and economic structures in the recipient countries, there is a lack of studies focusing on the effect of aid on human rights violations. I consider democracy and human D rights as two related concepts and thus any such effects should also be taken into account. This paper aims at finding out whether there is a relationship at all between aid and human rights. I will finish by concluding that there is a slight correlation at the macro level and politics needs to consider this when distributing aid.

Keywords: Timor-Leste, peacebuilding, statebuilding, global justice

1 Natalie Sophie Cebulla is currently reading a BA in Political Science and Public Law in the University of Mannheim, Germany.

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Introduction of view – the circumstances in faraway countries do not concern us rather wealthy heoretically, the transfer of foreign Europeans, it is nevertheless our duty, not aid to less and underdeveloped only morally, but also legally according to T countries is considered as a tool to for instance Art.21 of the Treaty on move the world towards global justice by European Union, to ensure the protection of giving money and other resources from human rights and economic development all those who have them in abundance to those over the world (EUR-Lex 2008). who hardly have anything. Consequently, Furthermore, it is the money we pay to our advertising on public transportation or governments that is given to economically commercials on television asking people to less developed countries. Therefore, it is in donate money to poor people who do not our interest to make sure that our money have enough food, sufficient health care or does not hurt people instead of protecting primary education are inherent parts of our them. everyday life. As a result, the amount of aid In this study, democracy and human donated from the mid-fifties until 2006 has rights are regarded as two related concepts, amounted 2.3 trillion US dollars (Easterly & so the basic assumption is that aid does not Pfutze 2008, 29). only have a negative impact on democracy in Numerous researchers in the social the recipient countries as previous studies sciences as well as some politicians and show, but also on the protection of human government officials severely criticise the rights. The main limitation of this paper is distribution of foreign aid (see for instance that it was not possible to discover the actual Easterly 2007; Erler 1985). Most of those causal link between aid and human rights studies and reports focus on the political and violations, because I only used macro level economic consequences in the recipient data to check whether there is a correlation countries, however, there has been no at all. In addition, the indicator I used for systematic research done so far on the violations does only include civil and influence of foreign aid on human rights political rights and not economic, social, and violations. With this paper I aim at filling cultural rights. Therefore, it was not possible this gap. It is not my intention to criticize to discover the impact of aid on the whole the donation of foreign aid as a whole, but spectrum of human rights. to evaluate it critically and, if necessary, draw This paper is composed of the attention to improvement, especially as far following parts: First, I will present common as the protection of human rights is criticism on foreign aid and then the current concerned. Although – from a rational point 61

Natalie Sophie Cebulla Impact of Foreign Aid on Human Rights Violations?

state of research on the relationship between numerous projects and sectors what partly aid, democracy, and human rights. After that can be ascribed to the fact that donors act I will demonstrate why I consider according to their national interests when democracy and human rights as two related selecting their recipients. Thus, aid often is concepts from which I derive my rather a policy instrument serving the donor hypotheses. After testing them empirically I instead the recipient (Lundsgaarde 2013, 3; will conclude that there is a weak, but Poe 1992, 163). Secondly, aid tying diminishes statistically significant relationship at the the actual value of aid, because donors insist macro level. that recipients purchase certain items from them, which leads to the fact that aid actually becomes inefficient. However, Why foreign aid is not aiding Easterly also notes that there has been great improvement, but on the other hand, some General criticism is that aid creates donors refuse to report their statistics on aid incentives for leaders to delay economic and tying or deliver incomplete or unclear political reforms and the fact that there are reports. Thirdly, food aid has the disadvantage hardly any institutional constraints for donor of pushing aside local food producers and countries regarding aid programs, so they are shop owners by making them uncompetitive free in the distribution of their money and and thereby destroying the local economy. resources (Lundsgaarde 2013, 2). Fourthly, technical assistance in most cases William Easterly, one of the most involves experts from donor countries who cited scholars in the area of foreign aid lack local knowledge and are hardly able to research, names four main points of transfer their expertise to local actors criticism: Firstly, there is donor coordination. (Easterly 2007, 639-644). Recipient countries are not only burdened with poverty, conflicts, and problems resulting from that, but also with Foreign aid and democracy administrative duties what results in “higher- than-necessary overhead costs for both According to Knack, foreign aid can donors and recipients” (Easterly & Pfutze contribute to the promotion of democracy 2008, 38). In addition, there is a huge donor in three main ways. First, through fragmentation instead of a clear and well conditionality: Donors award grants or loans organized structure resulting in numerous to foreign governments for liberalization, i.e. donors donating to numerous recipients in for adopting civil and political rights,

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holding free and general elections and associated with lower taxes to restrain rich respecting the rule of law, secondly, through elites who otherwise might pursue the technical assistance such as the promotion of establishment of an autocracy. In short, aid civil society organizations and monitoring does not promote regime change from during elections, and thirdly by improving autocracy to democracy, but fosters regime education and increasing the people’s income. stability (Morrison 2009, 109; 112-113). However, he could not find any evidence Similarly, Djankov et. al. demonstrate that that aid directly promotes democratic aid is rather a “curse” than a blessing, development, so he warns that the results of because it reduces the incentives for his study need to be interpreted with democratic accountability: “When revenues caution, because aid could be aligned with do not depend on the taxes raised from effects that undermine rather than promote citizens and business, there is less incentive democracy (Knack 2003, 2; 20). On the for accountability. At the same time corrupt other hand, Wright states that aid can government officials will try to perpetuate promote democracy, but it depends on the their rent seeking activities by reducing the size of the ruling party’s coalition partner: likelihood of losing power” (Djankov et. al. The leader of an autocratic regime will only 2008, 169; 172). democratize if success for the new regime Easterly and Pfutze criticize that with competitive, multiparty elections can be donors do not consider the quality of guaranteed, and this requires a large and democracy when distributing aid and even supportive coalition. If there is only a small “appear to be irresponsive to political coalition, foreign aid decreases the likelihood changes in recipient countries”: “Unfree2 of democratization (Wright 2009, 552; 561- countries have retained about a third of aid, 562). while around 80 percent of aid goes to Morrison discovered that aid – like oil countries either partly free or unfree” – is an “externally obtained” revenue, i.e. (Easterly & Pfutze 2008, 31; 41-42). In sum, neither the government nor the citizens have if a country is receiving foreign aid this does to work and pay for it. The consequence is not necessarily mean that a stable democracy that in a country that is rather autocratic, can also be guaranteed. Also, being externally obtained revenues are used to democratic does not mean that a country is raise social benefits to appease citizens who rewarded with aid. could start a revolution, because they are

unsatisfied with the social and economic 2 This classification is taken from Freedom House circumstances. In a democracy revenues are which rates states according to their level of democracy. They can be assigned to three categories; “unfree”, “partly free”, and “free” states. 63

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For instance, decisions to distribute aid do not only depend on the recipient country’s Foreign aid and human rights performance, but often also on the donor’s interests such as political and strategic It is remarkable that despite all that criticism, concerns (Neumeyer 2003, 25-26; Poe 1992, it seems that there has not been any 163). Alesina and Dollar state that “an reconsideration of the distribution practice inefficient, economically closed, mismanaged of aid. In the following I will try to find out non-democratic former colony politically whether or not aid has a negative impact on friendly to its former colonizer, receives the protection of human rights. I consider more foreign aid than another country with this important for three reasons: First, there similar level of poverty, a superior policy has not been done much research on that stance, but without a past as a colony”. topic as far as I know. Second, in my France as a donor can be considered as such opinion negative impacts of aid on human an example. Furthermore, when giving aid rights are more important than negative the US acts according to its interests in the impacts on the democratic system, because I Middle East. On the contrary, the some consider being killed or tortured worse than donors – mostly the Nordic countries – not being allowed to vote3. Third, if the respond to incentives such as income levels results show that aid does indeed promote and good institutions (Alesina & Dollar human rights violations, it would be another 2000, 33-34). Carey shows that the levels of severe reason to reconsider and restructure human rights violations have no impact on the politics of foreign aid. the decisions of whether or not to give aid as In most studies foreign aid has been far as European donors, especially the analyzed as a resource given to countries to United Kingdom, are concerned. Germany, reward them for protecting civil and political on the other hand, does give less aid to more rights or punish them for abuse as the case repressive countries. However, more may be (Hawkins & Goodliffe 2009; Knack attention was given to countries that 2003, 2; 20; Lebovic & Voeten 2009). Some succeeded in improving their human rights authors on the other hand, such as records. She concludes that the reason for Neumeyer, argue that there is only limited this is bureaucratic inertia among the donor support for the assumption that aid serves as countries (Carey 2007, 447; 461-462). a reward for the protection of human rights. Nielsen finds that states selectively impose sanctions against repressive states 3 However, I am well aware of the fact that a malfunctioning economy can also have a negative for violating human rights if three impact on physical integrity rights in the long run.

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conditions are met: Firstly, the sanctioned respectively. Second, donors do either not country does not have close political ties to seems to be aware and/or willing to face the sanctioning country. Secondly, the that their foreign aid policies are actually sanctions do not have any negative causing more harm than good in many cases. outcomes for the sanctioning country, and thirdly, the sanctions are widely publicized. As the cause for this he sees rationalist motivations he also refers to as “realpolitik”, Democracy and human rights – related because donor states are interested in concepts keeping peaceful and thus stable relations with their political partners and weakening I argue that democracy and human rights are their enemies. Constructivist thoughts purely two closely related concepts. For instance, motived by normative intentions aiming at most constitutions of established protecting and promoting human rights democracies not only contain provisions of cannot be used to explain those findings how the government and other state (Nielsen 2012, 2-3; 25). Moreover, it is “aid institutions are formed in a democratic way, shocks” that can cause violence: When there but also several articles that protect the basic are severe decreases in aid revenues, rights of the individual such as freedom potential rebels gain bargaining power in from arbitrary detention, killing, and torture. negotiations with the government. The Furthermore, both concepts are also reason is that aid normally is used to appease codified together in international public law rebels, but when there is a sudden stop of such as in Art.21 UDHR and Art.25 ICCPR aid transfers, they have no incentive to (United Nations 2012a; Office of the United behave peacefully. Furthermore, with Nations High Commissioner for Human sudden changes in the state budget, the Rights 2007). government has difficulties in keeping its According to the United Nations, military’s ability to preserve peace (Nielsen “the values of freedom, respect for human et. al. 2012, 2; 25). rights and the principle of holding periodic Altogether, these results lead to the and genuine elections by universal suffrage assumption that the relationship between are essential elements of democracy. In human rights and foreign aid is marked by turn, democracy provides the natural two problems: First, there is no formula that environment for the protection and effective ensures that aid promotes the protection of realization of human rights” (United Nations human rights and sanctions decrease them, 2012b). Similarly, Norman states that “it is

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(…) clear that human rights and democracy are interdependent, especially when defined in the broader conceptualizations of Foreign aid as a means to violate human democracy as substantive democracy, and rights human rights as civil, political, economic, social, and cultural rights. These different In her 1985 report, Brigitte Erler – former kinds of rights cannot be realized in a non- member of the German Bundestag and democratic system, and likewise, no development policy expert working for the democracy is sustainable without the Federal Ministry of Economic Cooperation presence of these rights” (Norman 2005). and Development – depicted the deficits and De Mesquita et. al. argue that party problems she was facing working in competition is essential for the protection of development politics for many years. She human rights for which the appropriate states that all her illusions that her work is institutional foundations are necessary, but actually helping have been more and more respect for integrity rights actually involve all destroyed and thus she decided to resign dimensions of democracy. Thus, it is not from her position. One main point of enough if a country is merely defined as criticism is that aid is disguised as having democratic as opposed to autocratic. It humanitarian and social aims, but actually – needs to be a fully established democracy. and many donors do not seem to be aware Only if that is the case, there is greater of that – helps to promote genocides and respect for integrity rights. In addition, full keeping exploitive elites in their positions accountability is also important (De (Erler 1985, 8-9). Similarly, Dutch freelance Mesquita et. al. 2005, 439; 456). Davenport journalist Linda Polman reported that and Armstrong find that democracy donations are misused by corrupt leaders to decreases state repression, but also that finance wars, because donors are forced to “below certain values, the level of cooperate with local authorities, in most democracy has no discernable impact on cases rebels or military regimes. Those who human rights violations, but after a are responsible for wars were given aid what threshold that has been passed” (Davenport prolonged conflicts instead of ending or & Armstrong 2004, 551). Consequently, I preventing them and helping its victims. In assume that aid does not only have a some cases the perpetrators even extorted negative impact on democracy, but also on resources from the donors as some kind of the protection of human rights. taxes or admission fees. In Sierra Leone, Rwanda, Somalia, Congo, and Afghanistan

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she discovered the same patterns of misuse Rights Watch 2010a; 2010b; 2010c; 2010d; in which in total more than 200 million US The Telegraph 2010). Therefore, the first dollars disappeared (Spiegel Online 2010; hypothesis is The Guardian 2010). There are at least two causal H1: Countries that receive foreign aid are more mechanisms through which aid can cause likely to have a high level of human rights human rights violations: First, the recipient violations. government can keep the aid for itself, which causes dissatisfaction and anger As already mentioned above, foreign aid can among the population for whom the aid was also have a negative impact on democracy. originally intended. As a consequence, they Thus, I used the level of democracy as a might start revolting against the state and the control variable. state in response will use violent means to protect itself and stay in power (Poe 2004, H2: Countries that have a low level of democracy 16-17; 23-27; 31). Second, as the example of are more likely to have a high level of human Ethiopia shows, foreign aid can be misused rights violations. as a means of coercion: The Ethiopian government under President Meles Zenawi One possible reason why aid is associated and his party Ethiopian People’s with human rights violations might be as a Revolutionary Front (EPRDF) control all result of corruption: Money is given to a aid programs and suppress political government which is supposed to give it to dissidents by conditioning access to aid on those in need, but instead government support for the ruling party. In addition, aid- officials use it for their private interests funded capacity-building programs whose (Schudel 2008, 507). It is also criticized that purpose is to improve people’s skills that “[a]id agencies are typically not transparent would help the country’s development are about their operating costs and how they used for indoctrination of children, teachers, spend the aid money” and that aid money students, and citizens with a neutral political often goes to corrupt autocrats (Easterly & view. Food aid is even withheld in cases of Pfutze 2008, 31; 41-42). Thus, I also emergency. As Rona Peligal, Africa director included corruption as an additional control at Human Rights Watch put it: “If you don’t variable. play the ruling party’s game, you get shut out”. This seems to be the dominant theme H3: Countries that have a high level of in Ethiopia’s foreign aid politics (Human corruption are more likely to have a high

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Natalie Sophie Cebulla Impact of Foreign Aid on Human Rights Violations?

level of human rights violations. to 10 “democracy” (PolityIV Project 2012). The second control variable is the

Corruptions Perception Index ranging from

1 indicating that a country is highly corrupt Variables and data to 10 indicating that there is no corruption.

The problem here is – as the name might For human rights violations as the dependent suggest – that this index is based on reports variable I used the Political Terror Scale by the population whether they think there (PTS) index that ranges from 1 to 5 with 1 is corruption or not (Corruption Perceptions indicating that the country is “under a secure Index 2012). This could have led to some rule of law, people are not imprisoned for cases of bias, but there was no alternative their view, and torture is rare or exceptional. indicator available. The analyzed time frame Political murders are extremely rare” and 5 goes from 2000 to 2010 and includes all that “terror has expanded to the whole countries that were listed on the PTS scale population. The leaders of these societies and in the aid data set. place no limits on the means or

thoroughness with which they pursue

personal or ideological goals”. The PTS Analysis and results provides two ratings, one based on Amnesty

International reports and one based on US For the analysis I created three models: The State Department reports (Political Terror first one only includes both main Scale 2012), both of which I will use independent variables; aid by countries and separately. I personally prefer the ratings by by organizations and agencies such as the Amnesty International, because ratings by European Community, the World Food the US State Department are considered to Program, the United Nations Development be biased in favour of friends of the United Programme, and the World Bank. One States while discriminating against their fundamental problem with this model is that enemies (Poe et. al. 2001, 677). it does not detect and balance those cases in For the main independent variable – which aid does have positive effects. Thus, foreign aid in US dollars – I used two types in model 2 I did the same as in model 1, but of aid; that by countries on the one hand, here I eliminated those cases in which the and that by international organizations and average PTS indicator of the years from agencies on the other hand (Tierny et al. 2000 to 2002 was worse than the average of 2011). The Polity IV index served as first the same country from 2008 to 2010. In control variable: It ranges from -10 “autocracy”

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model 3, the democracy and the corruption rather strong considering that aid actually is variables were additionally included. supposed to aid. In addition, the results also show that the level of democracy and corruption are important factors, i.e. that the more autocratic and corrupt a country, the more likely it is that aid is misused as a weapon. Table 1: Foreign Aid and Human Rights Violations In table 2 in which I used the PTS

(Amnesty International) indicator provided by the US State

Department, the results were similar, but

Model Model Model model 2 and 3 were only significant on the 1 2 3 .01 level in contrast to the results based on

the Amnesty International indicator that Aid by Countries 1.829* 1.82** 0.95** were significant on the .001 level.

Aid by 0.21 0.536* 0.14* Organizations/Agenci es

Democracy -- -- -.02*

Corruption -- -- -.06**

Constant 2.06** 2.37** 2.31** * * *

R2 .002 .072** .089** Table 2: Foreign Aid and Human Rights Violations * * (US State Department) * p < .05; ** p < .01 ; *** p < .001 Model Model Model 1 2 3

Table 1 shows the results with the human Aid by Countries 0.14 0.72* rights violations documented by Amnesty 0.821* * International. As expected, the first model Aid by 0.11 0.24* 0.414* does not explain anything which is probably Organizations/Agenci due to the fact that there have been too es

many cases that balanced actual human Democracy -- -- -.032*

rights violations caused by foreign aid. In the Corruption -- -- -.045* second and third model, however, this looks Constant 2.06** 1.56** 2.21** a bit different: In those cases in which aid * * * did have a negative impact, this impact is 69

Natalie Sophie Cebulla Impact of Foreign Aid on Human Rights Violations?

Alesina, Alberto & David Dollar. 2002. R2 .003 .047** .062** “Who Gives Foreign Aid to Whom and Why?”. * p < .05; ** p < .01 ; *** p < .001 Journal of Economic Growth 5(1): 133- 163.

Carey, Sabine. 2007. “European Aid: Human Rights Versus Bureaucratic Inertia?”. Conclusion Journal of Peace Research 44(4): 447-464.

Corruptions Perceptions Index. 2012. The results in both tables show that foreign http://www.transparency.org/research/cpi/ overview. aid does promote human rights violations. It Access August 29th 2012. is now the duty of the donor states to Davenport, Christian & David A. restructure and reconsider their foreign aid Armstrong. 2004. “Democracy and the politics, because aid that physically hurts Violation of Human Rights: A Statistical Analysis people and even kills them is worse than aid from 1976 to 1996”. American Journal of having just negative impacts on the level of Political Science 48(3): 538-554.

democracy and the economic system in the De Mesquita, Bruce B. et al. 2005. “Thinking recipient countries. When doing that, donors Inside the Box: A Closer Look at Democracy and Human Rights”. need to put back their own interests and not International Studies Quarterly 49(3): 439-457. label them as help. Furthermore, they need Djankov, Simeon et al. 2008. “The Curse of to keep detailed track of their actions and be Aid”. Journal of Economic Growth 13(3): responsive to improvements and declines in 169-194.

the recipient countries. In sum – to answer Easterly, William. 2007. “Are Aid Agencies the question posed in the title – foreign aid Improving”. Economic Policy 22(52): 633- 678. is not an innocent flower, but rather the serpent under it. Easterly, William & Tobias Pfutze. 2008. “Where Does the Money Go? Best and Worst Practices in Foreign Aid”. Journal of Economic Perspectives 22(2): 29-52.

Erler, Brigitte. 1985. Tödliche Hilfe. Bericht von meiner letzten Dienstreise in Sachen Entwicklungshilfe. Freiburg im Briesgau: Dreisam-Verlag.

Bibliography EUR-Lex, 2008. Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union. http://eur-lex.europa.eu/LexUriServ

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/LexUri Lundsgaarde, Erik. 2013. The Domestic Politics Serv.do?uri=OJ:C:2008:115:0001:01:en:HT of Foreign Aid. London / New York: ML. Access September 12th Routledge. 2012. Morrison, Kevin M. 2009. ”Oil, Non-Tax Hawkins, Darren & Jay Goodliffe. 2009. Revenue, and the Redistributional “Putting Money to Mouths: Rewarding and Foundations Punishing Human Rights Behaviors”. of Regime Stability”. International Paper prepared for the American Political Organization 63(1): 107-138. Science Association Conference in Toronto, Canada. Sept. 3-6, 2009. http:// Neumayer, Eric. 2003. “Is Respect for goodliffe.byu.edu/papers/hraid.pdf. Human Rights Rewarded? An Analysis of Access September 29th 2012. Total Bilateral and Multilateral Aid Flows”. Human Rights Watch. 2010a. Ethiopia: Donor Human Rights Quarterly 25(2): 510-527. Aid Supports Repression. http://www. hrw.org/news/2010/10/18/ethiopia- Nielsen, Richard A. et al. 2011. “Foreign Aid donor-aid-supports-repression. Access Shocks as a Cause of Violent Armed September 25th 2011. Conflict”. American Journal of Political Science 55(2): 219-232. Human Rights Watch. 2010b. Development without Freedom. http://www.hrw.org/reports Nielsen, Richard A. 2012. “Rewarding /2010/10/19/development-without- Human Right? Selective Aid Sanctions freedom-0. Access October 1st 2012. against Repressive States”. International Studies Human Rights Watch. 2010c. World Bank Quarterly. Forthcoming. Feeding Repression in Ethiopia. Norman, Julie M. 2005. “Human Rights and http://www.hrw.org/news/2010/10/22/w Democracy: Conceptualization and orld-bank-feeding-repression-ethiopia. Application in Palestine”. Access August 29th 2012. http://www.phrmg.org/human_rights_and_ democracy. Human Rights Watch. 2010d. Ethiopia: htm. Access October 3rd 2012. Donors Should Investigate Misuse of Aid Money. Office of the United Nations High http://www.hrw.org/print/news/2010/12/ Commissioner for Human Rights. 2007. 17/ethiopia-donors-should-investigate- International misuse-aid-money. Access September Covenant on Civil and Political Rights. 3rd 2012. http://www2.ohchr.org/english/law/ ccpr.htm. Access September 24th Knack, Stephen. 2003. “Does Foreign Aid 2012. Promote Democracy?”. International Studies Quarterly 48(1): 251-266. Political Terror Scale. 2012. http://www.politicalterrorscale.org/ptsdata. Lebovic, James H. & Erik Voeten. 2009. php. Access July “The Cost of Shame: International 13th 2012. Organizations and Foreign Aid in the Punishing of PolityIV Project. 2012. Human Rights Violators“. Journal of Peace http://www.systemicpeace.org/polity/polity Research 46(1): 79-97. 4.htm. Access July 13th 2012.

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The Telegraph. 2010. Overseas aid is funding Poe, Steven C. 1992. “Human Rights and human rights abuses. http://blogs. Economic Aid Allocation under Ronald Reagan telegraph.co.uk/news/peteroborne/1000613 and Jimmy Carter”. American Journal of 37/overseas-aid-is-funding-human- Political Science 36(1): 147-167. rights-abuses/. Access August 3rd 2012. Poe, Steven C. 2004. “The Decision to Repress: An Integrative Theoretical United Nations. 2012a. The Universal Approach to Declaration of Human Rights. http://www.un. the Research on Human Rights and Repression”. In: Understanding Human Rights org/en/documents/udhr/index.shtml. Violations: New Systematic Studies. Sabine Access September 24th 2012. C. Carey and Steven C. Poe (editors). Aldershot: Ashgate. United Nations. 2012b. Global Issues, Democracy and Human Rights. The human rights Poe, Steven C. et al. 2001. “How are These normative framework. Pictures Di erent? A Quantitative http://www.un.org/en/globalissues/democ Comparison racy/human_ of the ff US State Department and rights.shtml. Access September 21st Amnesty International Human Rights 2012. Reports, 1976-1995”. Human Rights Quarterly Wright, Joseph. 2009. “How Foreign Aid 23(3): 650–677. can Foster Democratization in Authoritarian Regimes”. American Journal of Political Schudel, Carl Jan Willem. 2008. “Corruption Science 53(3): 255-271. and Bilateral Aid A Dyadic Approach Journal of Conflict Resolution”. Journal of Conflict Resolution 52(4): 507-526.

Spiegel Online. 2010. Fehlgeleitete

Entwicklungshilfe: “Spenden finanzieren Krieg”.

http://www.spiegel.de/wirtschaft/soziales/f

ehlgeleitete-entwicklungshilfe-spenden- finanzieren -krieg-a-730015.html. Access September 26th 2012.

The Guardian. 2010. War Games: The Story of Aid and War in Modern Times by Linda

Polman. http://www.guardian.co.uk/books/2010/m ay/08/war-games-linda-polman- review. Access October 3rd 2012.

Tierney, Michael J. et al. 2011. More Dollars than Sense: Refining Our Knowledge of Development Finance Using AidData. World Development 39(11): 1891-1906.

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Responsibility To Protect: What For?: R2P And The Non- Intervention In Syria

Adelaida RIVERA, University of Amsterdam, The Netherlands

Abstract

n March 17th 2011, the United Nations Security Council approved the Resolution 1973 which authorized the use of force in Libya in order to protect civilians from the attacks performed by the state armed forces. The military action by NATO in Libya has resulted in diverse and divided O opinions. The recourse of Responsibility to protect appeared later as a measure intended to be implemented in the ongoing conflict in Syria, but after two failed resolutions, it became clear that some UN Security Council members are not willing to repeat the Libyan scenario. This text aims to examine some basic notions of the R2P concept, its application in Libya and the implications of the results after the Libyan case on its possible application in Syria.

Should the discussed objectives behind the application of Responsibility to Protect in the Libyan case and its results be determinant on the decision whether this doctrine can be applied in Syria? Is it possible that the mistakes committed in Libya, the atrocities now experienced in Syria and the non-response by the international community could mark the end of the whole concept of Responsibility to Protect? These questions are intended to be discussed in this paper.

Keywords: Responsibility to protect, Syria, Libya, Military intervention, Sovereignty, Use of force, Civilian protection

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Adelaida Rivera Responsibility to protect: What for?

Introduction of its contributions in protecting civilians, the experiences of Libya and Syria could esponsibility to protect was mark the end of Responsibility to Protect. officially applied for the first time The bases on which the decisions of to establish a non-fly zone over intervening or not in each case were made R Libya. The recourse of are not clear. At the end of this document, Responsibility to protect also appeared at the question on the practicality and the beginning of the conflict in Syria, but applicability of the model of Responsibility soon became clear that there would be no to protect will be opened. repetition of the Libyan scenario. This text aims to examine some basic notions of the Origins of R2P concept, its application in Libya and the implications of the results of the Libyan case Responsibility to protect was for the possible application in Syria. developed in the late 1990s in response to the failures of states and the international In the first part of the paper, the community to prevent mass human rights concept of Responsibility to Protect will be atrocities such as the experienced during the presented. This document will first discuss holocaust, and later on in cases like Rwanda, the origins of R2P as a response to the Srebrenica. By the failure of the international failures of states and the international community to prevent such mass atrocities community to prevent mass human rights and after several attempts to outline a atrocities, as well as its subsequent framework applicable when a state fails to development. Its development will be protect individuals during internal armed examined with a specific case of study: conflict, the International Commission on Libya, focusing on the criticisms that Intervention and State Sovereignty (ICISS), followed NATO’s intervention. composed by members of the UN General Assembly and initiated by Lloyd Axworthy, Subsequently, a revision of the then-Canadian Minister of Foreign Affairs current situation in Syria and the response set and named the concept of Responsibility by the international community will be to Protect on 2011. The concept stressed on presented. At this stage of the text, it will be when and how international community possible to establish a comparison between should take action to prevent or stop grave the conditions in which the intervention in human rights abuses committed against Libya was executed so then there is some civilians by state. (Van Landingham, 2012; space for questioning whether the Syrian Tarnogórski, 2012). The first major instance crisis fulfills the same criteria. Finally, this of Security Council practice under R2P’s document aims to recognize the principles third pillar was the March 2011, NATO led, of R2P, the main characteristics of the intervention to prevent atrocity crimes being Libyan and the Syrian crisis and the committed by the government of Libya international reaction towards both against its own citizens. (Williams et at, situations under the concept of 2012, 12) Responsibility to Protect. R2P rests on three pillars; the first This paper is grounded on the idea two referring to the responsibility of States that R2P has deviated its focus of protecting and International community to protect the civilians when mass atrocities are being civilian population from genocide, war perpetrated. Considering the difficulty in crimes, ethnic cleansing, and crimes against turning the doctrine from words to actions it humanity, as well as from their incitement. is necessary to explore alternative forms to States are responsible for protecting their define in a more precise way the scope of own population, while the international the whole concept. Despite the importance community has the responsibility to assist a

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state to fulfill its duty. R2P is primarily about August 2010 Gaddafi forces arrested prevention, so that intervention is only thousands of people across the country, required when the state fails to fulfill its including antigovernment protesters, responsibility to guarantee the safety of suspected government critics, and people civilians among its territory. Intervention alleged to have provided information to must be considered as last resort - international media and human rights Responsibility to react-, followed by the organizations. (Maluwa, pp. 200-232, cited mission to provide international assistance by Omorogbe, 2012). after the actions -Responsibility to rebuild- (Bellamy, 2012; Tarnogórski, 2012) Aware of the situation, the Arab League took a strong position against the R2p is based on the idea of respect use of force by the Gaddafi regime, of sovereignty of states and non- suspended Libya from the league and intervention in internal affairs. The idea of convened an extraordinary session calling on sovereignty, even though involves self the Security Council to take the necessary determination and territorial integrity as the measures to impose a no-fly zone, and to most important rights of a state, also implies intervene to protect the population, while the responsibility to protect civilians under respecting the sovereignty and territorial its territory. The principle of non- integrity of neighboring States. “Following intervention was fundamental for the extensive human rights abuses, and creation of the UN. However, according to statements of intent to commit mass the third pillar of R2P, the international atrocities by Muammar Gaddafi, on community is responsible for taking action, February 26, 2011, the UN Security Council when the state has failed to protect its passed resolution 197088 in an attempt to population from one or more of the four resolve the Libya crisis peacefully. The crimes (Bellamy, 2012). Every state has the resolution cited the Libyan authorities’ primary responsibility of protecting responsibility to protect its population, populations within its jurisdiction against further referring the Libyan situation to the acts of genocide, war crimes, ethnic ICC, imposing an arms embargo, travel ban, cleansing, and crimes against humanity. and asset freeze on a number of specified Nevertheless, in the event of a failure on the individuals” (Williams et at, 2012, 12).On part of the territorial state, when the state is early march UN Security Council authorized unable or unwilling to stop these crimes, the a no-fly zone over Libya and air strikes to international community has the protect civilians, over which NATO assumes responsibility to intervene. Sovereignty command. Finally, on 17th March 2011, the entails responsibility, so that non- U.N. Security Council authorized military intervention depends on the territorial state action in Libya, stating that the point of the fulfilling its duty to protect its population. action was to protect the Libyan people. (Evans, 2012; Omorgobe, 2012; Pommier, 2011) NATO's military intervention in Libya was initiated under the principle that the R2P in Libya world should not stand by while mass atrocities go on within a sovereign state. As The roots of the Libyan crisis lie in the a response to the widespread and systematic political upheavals associated with the ‘Arab attacks by the regime of Libyan President Spring’ protests started in the early months Gaddafi against civilians, the United Nations of 2011. Political protests demanding an end Security Council adopted Resolutions 1970 to Muammar Gaddafi’s rule began in the and 1973 that called for an arms embargo capital of Tripoli and spread across the and a no-fly zone. Resolution 1973 also country, descending into a civil war and a authorized member countries and regional humanitarian crisis. From February until organizations to take “all the necessary 75

Adelaida Rivera Responsibility to protect: What for?

measures” to protect civilians and and are still being committed. There have population centers in the country from the been many examples of peaceful, unarmed threat of attack. The NATO mission protesters being killed by the Syrian expanded over time beyond its mandate to government forces than in Libya where give air support for anti-Gaddafi forces. armed rebels were engaging in revolt. NATO conducted a seven-month operation However, Responsibility to Protect has not to protect civilians from the threat of attack been contemplated. Unlike in the Libyan in Libya, launched thousands of air strikes case, the proposed resolution concerning on government targets during the conflict, Syria did not authorize any use of some of which killed civilians. (Bolopion, international force or sanctions. (Hall 2011; NATO, 2010; HRW, 2012). Findlay, 2011)

On July 2011, the National On March 16, U.N. envoy, Kofi Annan, Transitional Council (NTC), which describes developed a six-point plan for peace in Syria. itself as the only legitimate body President Assad accepted the plan and assured that his regime would comply. representing the people of Libya and the Nevertheless, government forces continued Libyan state as the legitimate government of to murder demonstrators. On 4 February Libya, was formally recognized as the main 2012, the UN Security Council voted on a opposition group. Later that year, in draft resolution, resulting on 13 votes in October, Gaddafi was finally captured and favor, and the veto of China and Russia. On killed. After declaring Libya as officially 19 July 2012, China and the Russia used "liberated" and announcing the upcoming their veto again to block another resolution. This time, South Africa and Pakistan elections, The Security Council ordered to abstained, and stressed the importance of end the international military action in Libya. finding a peaceful settlement through Finally, the Security Council unanimously dialogue as well as the importance of passed a resolution ending the UN mandate maintaining Syrian territorial integrity. The allowing military intervention and failure to pass a resolution on Syria was terminating a no-fly zone over Libya that directly related to the actions of the NATO intervention in Libya. Some scholars affirm had been imposed in March. in this regard that the disagreements within the Security Council could have a direct impact on the future of the Responsibility to R2P in Syria Protect. (Gatlin, 2012; Koops, 2012)

Starting on March 2011, the crisis in According to the explanations Syria has transformed from remote peaceful provided by China and Russia, the two states protests into large-scale demonstrations, that used their right to veto on the last two followed by the creation of the Free Syrian resolutions about the Syrian case, the vetoes Army by President Bashar al- Assad’s against a first draft Security Council regime. Since then, the regime’s army has resolution in early 2011 were not emitted performed brutal attacks against the civilian because Syria lacked any responsibility to population, from arrests of political activists protect its people but due to the resolution’s to torture and killings on a massive scale. failure to hold opposition forces Syria has denied that its government was accountable. In the case of the second committing such atrocities and justified its resolution in October 2011, their veto was actions as a reaction to the attacks by the due to the failure of the resolution to opposition forces. (Drobolowska-Polak, appropriately call on the opposition to 2012; Mohamed, 2012; Gatlin, 2012). disassociate with extremists, and because Massive human rights violations have been they –China and Russia-, along with India,

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Brazil, and South Africa, were concerned political, military, and humanitarian agendas that the resolution was a pretext for armed of the key international players in the Libyan intervention similar to what they believed case were difficult to read. It appeared that occurred in Libya. (Van Landingham, 2012) the military operations were aimed at supporting the forces assembled by the Why Libya and not Syria? National Transition Council.

On one side, based on the concept The idea of the legitimacy of the use of sovereignty as the most important right of of force to ‘protect civilians’ had become a State, R2P stands on the principle stating unclear although “military intervention is an that international community should not essential part of Responsibility to Protect, in execute military interventions. “The Syria the Libyan case, the intervention was highly crisis illustrates the extent to which the imperfect, placing the region’s long term international community must exhaust its stability in the hands of rebels and leading to peaceful options before low intensity an inconsistent protection of the civilian military options could be considered. In population” (Pommier, 2012; Bellamy, 2011, Syria, the international community has tried pg 269). It is argued by many scholars that multiple rounds of regional and UN- NATO’s operation in Libya went far beyond brokered peace plans, and sanctions without its main objective of protecting civilians to success. In fact, the Assad regime’s attacks become an intentional action against its on civilians have intensified, with the regime regime (Bolopion, 2012; Welsh, 2011; Hall- increasingly relying on heavy military Finlay, 2011; Pommier, 2012). “UN’s weapons such as cluster bombs and mandated measures restricted Libyan state helicopter gunships.” (Williams et at, 2012, terror and tipped the balance of forces in 20). Military intervention is considered a favor of the rebel forces” (Dunne & Gifkins, measure of last resort and only used when 2011). The objective of the executed every non-military option for the prevention operations seemed more oriented towards or peaceful resolution of the crisis has been the defeat of Gaddafi’s regime by supporting explored. R2P does not prescribe a the rebel forces. The operation in Libya has particular course of action, nor aims at introduced doubts, about the intentions of authorizing military intervention. Instead, it some international actors involved, about makes emphasis on the responsibilities of the validity of the principle of using force to sovereign states and commits them to take protect civilians, and even about the validity consecutive, steps to mitigate the risk of of the idea that the world has a responsibility mass atrocities, based on existing legal to protect citizens from their rulers. obligations. (Hall-Finlay, 2011; Tarnogórski, (Pommier, 2011; Bolopion, 2011) 2012) Approved with ten votes in favor On the other side, it could also be and five abstentions, it is clear that many argued that military intervention is justifiable countries were not sure or even opposed the and sometimes necessary as last resort to Security Council's action in Libya. stop mass atrocities when the state is not Abstentions during the Security Council able to do it by itself. According to Claudia vote indicated that some governments McGoldrick (2011), Special Adviser to the already had reservations about implementing International Committee of the Red Cross the protection of civilians by force in Libya, Presidency and journalist who worked in same sates that are now hesitant to support West Africa, even though the use of force to intervention in Syria. The countries that protect civilians as a last resort is sometimes opposed the Security Council's action, now unavoidable, it might be perceived as a believe the Western operation has gone far political construct aimed at weakening the beyond merely protecting Libyans, and it is notion of state sovereignty. Additionally, the now widely seen as an action intended from 77

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the start to get rid of the Libyan ruler Conclusion (Pommier, 2011; Bolopion, 2012). It is argued by many scholars that the However, diverse scholars (Hall coalition’s objective during the intervention Finlay, 2011; Dunne & Gifkins, 2011) in Libya was the collapse of the Gaddafi support the idea that the future of R2P regime, finally considering this objective as should not be defined by the origins and one of the necessary measures to protect effects of the operation in Libya. The no-fly civilians and civilian populated areas under zone and other punitive sanctions were in threat. Additionally, there has been an place for five months before the Gaddafi imbalance between the sides and the regime fell. It could be said then, that it is reported systematic attacks on unarmed still too soon to make a definitive estimation civilians by government forces, leading to on the R2P success. According to the debate about the imperative of protecting statements presented below, such civilians, initially primarily by means of the considerations about the objectives behind imposition of a no-fly zone aimed at the Libyan intervention and its final results preventing Gaddafi’s air force from should not be a determinant for the decision attacking civilians, but the hidden pretext whether to take or not action in the Syrian was to stop his forces. (Pommier, 2012; case. “The Syria crisis highlights the current Bolopion 2012; White, 2011) limitations of the R2P doctrine. Despite Originally, Responsibility to Protect R2P’s important contributions to the appears as a response to the unquestionable protection of populations over the past need to prevent mass crimes. However, the decade, the Security Council’s veto system guidelines about how and when the can still create situations where states are operations by the international community permitted to commit mass atrocity crimes should take place are very imprecise and against their citizens. At present, R2P lacks a there has not been an agreement on the framework for the limited use of force when situations in which the concept applies. It is the Security Council fails to act. In its known that the current situation in Syria has present formulation, therefore, R2P is lead to a large number of deaths at the hands missing a crucial component”. (Williams et of national authorities, a situation which, if at, 2012, 2) As Gatlin (2012) has stated, “the not intervened on time, could lead to many international community is doing little to other abuses by the local government. The contest the horrors in Syria. If military question about whether or not the possibility intervention was warranted in Libya, the of a military intervention in Syria should be United Nations should not deny the same considered must be resolved based on the cause of action for Syrian civilians, where six criteria on military intervention, the population is four times larger than that established by Responsibility to protect, and of Libya and the circumstances are arguably not based on the past events experienced in worse”. Further hesitation for military Libya. intervention under R2P is only leading to more Syrian citizens causalities. Non-military options for the resolution of the crisis have been already explored. After several attempts of dialogue with the local government, Syrian authorities keep denying the commission of any crimes against the civilian population and the country remains in conflict as the Assad regime murders demonstrators and opposition. “When peaceful measures have been exhausted and the Security Council is deadlocked, R2P’s third pillar should allow

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the use of only those low intensity military References options, such as no-fly zones and humanitarian safe havens that are focused Bellamy, Alex J. (2011) The Responsibility to on protecting populations. This approach Protect—Five Years On at Ethics & would advance R2P’s development by International Affairs, Volume 24, Issue 2, establishing specific criteria that allow for pages 143–169, Summer 2010. the limited use of force when the Security Council fails to act. In doing so, R2P will be Bellamy, Alex J. (2011) Libya and the able to fulfill its primary purpose of Responsibility to Protect: The Exception and the preventing mass atrocities within a sovereign Norm at Ethics & International Affairs, 25, state, thus preventing future tragedies similar no. 3 pp.263-269. Carnegie Council for to those that have been seen in Bosnia, Ethics in International Affairs. Rwanda, Darfur, and now Syria.” (Williams et. al, 2012 pg 1) Bolopion, Philippe (2011) After Libya, the Question: To Protect or Depose? Los Angeles Even if the causes for interventions Times, 12th August 2011 available at may be equally just, it is unavoidable that http://www.hrw.org/news/2011/08/25/aft specific internal, external and regional er-libya-question-protect-or-depose conditions and configurations affect the likely success and overall justification of an Dobrowolska-Polak, Joanna (2012) Non- intervention. A large scale loss of civilians’ legitimized military intervention in Syria - a possible lives is indeed one of the main issues of the scenario in the coming months? At Institute for Syrian conflict, fact that makes of this case a Western Affairs Poznań, bulletin No 100. just cause for military intervention according to Responsibility to Protect guidelines. Even Dunne, T.and Gifkins, J (2011) Libya and the though, the Security Council is failing to act. state of intervention. Australian Journal of As stated by Gatlin (2012) the Syrian crisis International Affairs Vol. 65, No. 5, pp. serves as the impetus for a new discussion 515_529 on the legitimacy of military intervention under the concept of R2P. Like the Libyan Gatlin, Husain A (2012) A Problem of Mixed crisis, more remarkable action to protect Motives: The Responsibility to Protect in Syria civilians is needed in Syria. In conclusion, Student Scholarship. Paper 20. On despite the importance the contributions http://erepository.law.shu.edu/student_sch that the concept of Responsibility to Protect olarship/20 has done to the prevention of mass atrocities and protection of civilians in conflict Glanville, Luke (2012) The Responsibility to situations, the scope of the concept is still Protect Beyond Borders at Human Rights Law very questionable. However, the crisis of the Review 12:1 Oxford University Press. concept of responsibility to protect is not a product of the outcomes of the Libyan Hall-Findlay, M. (2011) Can R2P Survive intervention. It has been Syria the case that Lybia and Syria?, Strategic Studies Working has placed the concept of R2P in crisis. The Group Papers, Canadian Defence & Foreign lack of military intervention in Syria calls Affairs Institute and Canadian International into question the mere existence of this Council, available at doctrine. http://www.opencanada.org/wp- content/uploads/2011/11/SSWG-Paper- Martha-Hall-Findlay-November-2011.pdf

Human Rights Watch (2012) World Report 2012.

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Inter-Parliamentary Union (2013) Enforcing Van Landigham, RACHEL (2012) Politics Or The Responsibility To Protect: The Role Of Law? The Dual Nature Of The Responsibility To Parliament In Safeguarding Civilians’ Lives Protect at Denver Journal of International At Report 128th Assembly and related Law and Policy, Forthcoming meetings Quito (Ecuador), First Standing WEISS, Thomas G. (2011) RtoP Alive and Committee C-I/128/R Peace and Well after Libya. Ethics & International International Security Affairs 25, no. 3

Kirwan, Stephen (2012) Rethinking the norm of Welsh, Jennifer (2011) Civilian Protection in responsibility to protect: Towards a better use of Libya: Putting Coercion and Controversy Back into Chapter VII? At Social and Political Review, RtoP. Ethics and International Affairs: 1-8 Volume XXII, Trinity College Dublin pg 87- 97 White, Nigel (2012) Libya and Lessons from Iraq: International Law and the Use of Force by the Koops, Joachim A (2012) Syria: a responsibility United Kingdom at Netherlands Yearbook of to protect? The ‘just case’ versus the ‘valid case’ at International Law I. F. Dekker and E. Hey Strategic Snapshot No. 5. Group on Grand (eds.), 42, chapter 9. Stichting T.M.C. Strategy. ASSER Instituut, The Hague.

Lee, Shin-wha (2012) The Responsibility to Williams, Paul R. ; Ulbrick, J. Trevor; Protect (R2P) From Libya to North Korea?at Worboys, Jonathan (2012) Preventing Mass Asia Security Initiative working paper. East Atrocity Crimes: The Responsibility To Protect Asia Institute, Korea University And The Syria Crisis at Case Western Reserve Journal of International Law, Forthcoming. McGoldrick, Claudia (2011) The future of American University, WCL Research Paper humanitarian action: an ICRC perspective. No. 2012-45 International review of the Red Cross, Volume 93, Number 884, pp965-991.

Mohamed, Saira (2012) The U.N. Security Council and the Crisis in Syria at Insigths, Volume 16, Issue 11. American Society of International Law.

Omorogbe, Eki Yemisi (2012) The African Union, Responsibility to Protect and the Libyan Crisis. Journal of Conflict & Security Law vol. 16 issue 1 2011. p. 35-62

Pommier, Bruno (2011) The use of force to protect civilians and humanitarian action: the case of Libya and beyond. International Review of the Red Cross, 93, pp 1063-1083

Tarnogórski, Rafał (2012) Libya and Syria: Responsibility to Protect at a Crossroads, PISM Strategic Files, issue: 26 / 2012, on http://www.ceeol.com.

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Mikhail Shavtvaladze Effects of Democratic Citizenship on Pursuing Global Justice

Effects of Democratic Citizenship on Pursuing Global Justice: from the perspective of the post-Soviet Georgia

Mikhail SHAVTVALADZE1, Tblisi State University, Georgia

Abstract

hroughout the world history one particular pattern is obvious that people in all nations desperately strive towards justice. What justice really means and what it entails can have many definitions and T explanations ranging from liberty to equal distribution of opportunities, however it often can be also associated with such concepts as democracy, the rule of law and human rights. Although, significant progress have been made in this direction, notably abolishment of slavery, introduction of universal suffrage in most countries, alleviation of poverty, adoption of universal declaration of human rights, severe problems such as authoritarian regimes, conflicts, terrorism, inequality, environmental hazards, human trafficking, inadequate living standards and widespread poverty still largely persists and haunt us. Despite significant differences in attitudes towards global justice from country to country, based on its size, economic power and political influence across the globe, the above mentioned positive steps has been still made, yet plenty of problems still largely remain. Hence, it is interesting to find out how this progress has been achieved, was it global democratic process, economic development or something else. Looking from the perspective of the post-Soviet country such as Georgia, in this paper, firstly, I would like to explore what the concepts of global justice and democratic citizenship mean and how they can be related to each other. Secondly, I would like to find out what is the current state of democracy in Georgia and to what extent active political participation along with strong civil society can influence on pursuing justice not only domestically but also globally. Finally, I would like to examine what are those domestic and global factors that might inhibit the people's aspiration to global justice.

Keywords: global justice, democratic citizenship, democratization, political participation, civil society.

1 Mikhail Shavtvaladze, 34, is a graduate who received his Bachelor in International Economic Relations at the Georgian Technical University in 2001. In 2010, he obtained a MA in Political Science at the Central European University. He has written his Master Thesis on the post-soviet transitions and conflict resolution. Currently, he works at the Tbilisi State University as an HESP - AFP (Academic Fellowship Program) fellow and visiting lecturer. His interests include comparative politics, international relations, democratization and state building, modernization and development, conflict resolution, and foreign policy analysis.

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Introduction Hence, it is not only interesting to find out how this progress has been achieved either esperate efforts to achieve justice through the means of democratization, are well observable pattern in economic development or something else, Dnature of humankind that can be but also why so many above mentioned traced throughout the entire history of the faults and problems still continue to haunt world. What justice really means and what it us. entails can have many definitions and Given that, whatever broad range of explanations ranging from liberty to equal definitions and explanations the concept of distribution of opportunities, however it global justice might entail, in this paper, I often can be also associated with such want to analyze the concept in relation with concepts as democracy, the rule of law and democracy, the rule of law and human human rights. rights. Consequently, in order to investigate Although significant progress have been the links between global justice and made in this direction, notably abolishment democratization as well as links between of slavery, introduction of universal suffrage global justice and human rights, the post- in most countries, alleviation of poverty, Soviet Georgia, as a country case-study, will adoption of the International Bill of Human be examined. Rights, severe problems such as Therefore, I firstly intend to explore what authoritarian regimes, conflicts, terrorism, the concepts of democratic citizenship and inequality, environmental hazards, global justice mean and how they can be discrimination of minority groups, linked to each other. Secondly, I would like inadequate living standards and widespread to find out what is the current state of poverty are still largely persisting in our days. democratization process in Georgia and to Despite significant differences in attitudes what extent it can influence on pursuing towards global justice from country to justice globally. Finally, I would like to country, derived mostly from the uneven examine what are those domestic and global distributions of magnitudes, economic perspectives and challenges that can powers and political influences among promote or hamper people’s aspirations countries in the world, the above mentioned towards global justice. positive steps has been still made, yet plenty of problems such as widespread poverty,

illiteracy, discrimination of minorities, Democratic citizenship versus injustices repressive regimes and corruption still domestically and globally largely remain. 81

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In any political system or regime, be it six hundred years. Later on, namely in the totalitarian, authoritarian or democratic, second half of twentieth century, the individuals engage in certain forms of contractarian theory was further expanded and relationship with the existing government examined by John Rawls. However, all these and its structures or institutions. However, bright ideas pertinent to the establishing just the roles and the nature of such relationships societies, based on liberal, democratic and vary across the regime types. If individuals in egalitarian values, were mostly limited to one totalitarian or authoritarian regimes are particular nation-state. considered to be a mere subjects who are As a result of the industrial revolution of the coerced to obey a dominant power’s dictates eighteenth and nineteenth centuries, the and decrees, in democratic societies though, emerging world wars in first half of individuals are assumed to be main source of twentieth century and, finally, the intensified power and relationship between a citizen globalization processes of the last decades, and government can be described as social resulting in rapid technological advance, contract based on justice, equality, the rule of have largely contributed to the increase in law and peaceful manner to resolve social demand for global justice. cleavages. Hence, on the one hand, such call for global Contrary to the highly asymmetric justice can be attributed to the intensive relationship between a citizen and people’s movements as within as well as government observed in the totalitarian and across the countries precipitated generally by authoritarian regimes, where individuals play the globalization processes and their effects. no role and have no say in shaping public While, on the other hand it can be also policies that affect their everyday lives, the ascribed to the challenges that a particular idea of social contract envisages active nation or multi-nation state has faced in citizen participation in politics implying that forms of environmental disasters, ethnic government and governed are engaged in conflicts, poverty, corruption and autocratic some kind of formal dialogue, deliberation regimes that become beyond the reach of or partnership with the aim to set citizens in any country. overarching rules and common public goals, Even though no centralized authority (Nagel, among which justice to be a primary. 2005, p. 116) yet exists to resolve all these Elaborated by such prominent thinkers as injustices and address all those challenges Thomas Hobbes, John Locke, Jean-Jacques found in today’s modern highly interrelated world Rousseau, Immanuel Kant and others, the (Bozac, 2012, p. 451), emergence of the idea of a social contract dates back almost intergovernmental organizations (e.g. United

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Nations, NATO, EU, WTO etc.), multilateral institutions (Chandhoke, 2007, p. international non-governmental 3018) . organizations (INGOs) and global civil However, it is important to note that the movements (e.g. Freedom House, Human coercive imposition of democracy upon others Rights Watch, Amnesty International, (Encarnacion, 2005, p. 50) by external Oxfam, Medecines Sans Frontieres etc.) powers may backfire resulting in even more after the world war II, provide some kind of chaos, violent conflicts or the consolidation universal guidelines and rules for any state to of new dictatorial rules rather than promote justice, protect human rights and democracy. Cases of such democartic alleviate poverty at least within their national imperialsim (Encarnacion, 2005, p. 55) can be borders. traced by observing US foreign policies in Consequently, all these globalization effects the early twentith century towards the that lead to the process of increasing connections in countries in the Central and South America. the areas of economics, communication, technology Hence, due to the United States' crusade in and politics (Barrington et al., 2010, p. 87), Latin America (e.g. in Mexico in 1914), in the together with widespread societal acceptance name of promoting democarcy (Encarnacion, of democartic values, takes public sphere 2005, p. 51), contributed to establish from domestic to global level. Successively, authoritarian one-party political system, people’s demand for justice, before confined lasting over the seventy years. within nation-state, expanded further More recently, it was the US military towards global domain. intervention in Iraq under the Bush Political consequences of such global trends presidentship, due to which, right after the and developments can be observed in recent invasion, Iraq turned into a chaotic and violent uprisings and revolutions taking place in land where thousands of civilians have been killed Egipt, Tunisia and Libia, dubbed as the (Encarnacion, 2005, p. 52). Hence, for the “Arab Spring”, as well as movements such healthy democarization process to take place as “Occupy” and the anti-austerity protests in any country, which in turn leads to more throughout Europe (Lutsevych, 2013, p. 2). just and peaceful society, it is necessary for Particularly, these events illustrate to what global powers to promote democracy by example extent mass mobilization organized by means of rather by force (Encarnacion, 2005, p. 58). the internet and mobile communication (Castells, Subsequently, it can be noted that no metter 2008, p. 87) can pose threat not only to how noble, liberal or democratic the ends dicatorial powers of the old authoritarian are, they do not justify any means. rulers, but also to follies and wrongdoigns of

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For that reason, instead of forceful or tendency to resolve conflicts peacefully, the coercive means, democratic values in any concept of democartic citizenship can in society can be effectively promoted by turn lead to comparatively less unjust world means of education, free media and civil than it is today. Therefore, it can be deduced activism. Given that, the concept of that connection between pursuing justice and seeking democartic citizenship, introduced first at democracy (Sen, 2009, p. ix) is rather obvious the national level by means of civil society and it can extend to the global level. organizations, education or mass media, can greatly contribute to more just and peaceful State of democratization process in the environment not only within the particular post-Soviet Georgia: no justice without genuine democracy state but beyond its borders.

Hence, one of the main reason for such Past sequence of events that took place in optimistic assumption is that albeit the Georgia, the newly independent, small, democartic mind (Burroughs, 2011, p. 6) is multiethnic state that emerged from the hardly innate in humans, unlike egocentricity rubbles of the Soviet Empire, clearly show and ethnocenticity that require no special the pattern that path towards democratic training (Burroughs, 2011, p. 6) as Walter nation-building are not always smooth, but Parker, in his book Educating the Democartic is rather characterized by chaos and violent Mind, contends, cultivating democartic habits political cleavages. As a consequence, and competences (Burroughs, 2011, p. 6) Georgia’s transition from the old totalitarian through educational programmes, free media regime has not been resulted in a stable and civil society organizations can greatly democratic system but rather in series of induce citizens in any particular country to semi-authoritarian, hybrid regimes without establsih more just and democartic societies strong, viable civil society and system of challenging domestic as well as global checks and balances. injusticies. Although, the causes of such dramatic turns In addition, the concept of democratic of events are many and complex, at least citizenship, apart of conceptions as personally some of the major causal effects such as responsible, participatory and justice-orinted citizen soviet legacy expressed in undemocratic and (Westheimer & Kahne, 2004, p. 239), aslo illiberal political culture, political elite’s ill- concieves such principles and skills as critical judged approaches to diversity issues, thinking, tolerance, the protection of human especially to the issues of ethnic minorities rights, inclusion, peace and consensus. residing in the territory of Georgia, as well as Consequently, if adopted widely, through its unfavorable global circumstances that

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significantly affected domestic outcomes, Ilia II. For example, according to the recent can be emphasized. opinion polls conducted in Georgia by IRI Speaking of the above mentioned specific (International Republican Institute) among type of Soviet political culture, during the the three most trusted institutions (International late period of the USSR’s existence, people Republican Institute, 2012) the Georgian in most union republics, including in Orthodox Church tops by 93 percent, Georgia, more or less tended to favor those followed by the army (89 percent) and police ideals such as freedom of movement, increased (87 percent). autonomy and cultural expression (Beisinger, Furthermore, looking the Georgia’s post- 2002, p. 48) instead of security and order. Soviet political culture from the lenses of the Such outcome can be attributed to the Almond and Verba’s Civic Culture Theory, Gorbachev’s reformist politics aimed to it can be noticed that in the form of the liberalization of the Soviet totalitarian Soviet legacy of totalitarian regime, due to its system. highly centralized nature of nomenklatura However, since the Soviet Union’s demise, (Wheatley, 2005, p. 21) Georgia inherited the most citizens in Georgia started to favor type of civic culture, more characterized as order and security over freedom and “subject” and “deferential” rather than democracy, largely due to the complete “participatory”. As a result most citizens in deterioration of economy, emerging violent Georgia yielded most of their powers to the conflicts, sharp rise of crime level, newly emerged charismatic leaders, in hopes corruption and inequality. For example, that the incumbent will resolve all their CRRC’s Caucasus Barometer 2010 Survey socioeconomic issues and provide justice results show that more than fifty percent of and fairness. the households surveyed in Georgia, versus Consequently, every successive post-Soviet 35 per cent, see the government’s role as a leader, whether Gamsakhurdia, parent rather than employee (Caucasus Shevardnadze or Saakashvili, who emerged Research Resource Centers, 2010). as a result of overwhelming popular vote, Moreover, the claim with respect to citizens’ misused their powers in their own ways. If preferences of order and security can be the first President Gamsakhurdia’s hyper- further substantiated by the fact that, over nationalistic appeals largely contributed to the last twenty year period, people in the escalation of civic and ethnic conflicts Georgia became overwhelmingly supportive leading to coup d’état, the next President towards the Georgian Orthodox Church and Shevardnadze’s rule, aside of devastating its leader Catholicos-Patriarch of all Georgia, military conflict in Abkhazia, was marked by

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widespread corruption, clientelism, on crime (Dolidze & de Waal, 2012). Hence, if economic stagnation and lawlessness. in one case modern communication As for the third President Saakashvili, an US technologies are used for mass mobilzation educated lawyer who surged to power in the against authocracy and government peaceful Rose Revolution of 2003 (de Waal, injustices, in another case the same tools are 2012), instead to consolidate democracy and employd by the authoritarian rulers to resolve the frozen ethnic conflicts strenghten their grip on the society they rule. peacefully, he choose to solidify his own As a result, many political opponets and power through amending the Constitution. activists objecting the regime, ended up in As a result, Saakashvili acquired power to jail without fair trial, their private properties initiate and veto legislation, to abolish were forcefuly extorted and some of them existing laws, and dissolve parliament even became subject of killings (e.g. Sandro (Shavtvaladze, 2012, p. 36). Girgvliani’s case, in 2006) and phisical abuse. Because of such undemocratic political Consequently, unable to find justice at the setting and the absence of judicial independence national level due to the Georgia’s highly (Barrington et al., 2010, p. 280) in Georgia, unjust judiciary system, with the acquital rate that was characterized the Saakashvili’s nine close to nil, many citizens in Georgia who year rule, it become even more difficult for become victims of such systemic violence ordinary citizens to find justce at the sanctioned by Saakashvili’s regime, had to national level. Moreover, despite more apply for the European judiciary institutions, effective measures taken by Saakashvili’s such as the European Court of Human government to eliminate petty corruption Rights in Strasburg. that increased state revenues further Even if the recent electoral victory of the (Shavtvaladze, 2012, p. 38), it turns out that main opposition “Georgian Dream” throughout this period, largest part of these coalition over the ruling “United National revenues and most efforts of the ruling elite Movement” party in the last October 2012 were directed towards building an parliamentary elections can be regarded as a authoritarian police state rather than positive signal that more particpatory democratic political system. political culture has been emerged in For that reason, Saakashvili and his ruling Georgia and peacful transfer of power is possible party (United National Movement) created despite numerous obsticles (Lutsevych, 2013, p. an extensive – and very lakely illegal – surveillance 2), it hardly denotes that Georgia has already and security apparatus in Georgia (Cecire, 2012, consolidated its democarcy. p. 2) based on the harsh “zero tolerance” policy

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Thus, further commitments to the civil society in Georgia (Lutsevych, 2013), civil democartic values, as among general public activism in this post-Soviet country, and the as well as governing elites, is yet to bee seen, current state of civil society in genaral, meaning that faced again with issues of remains feeble, meaning incapable to transitional justice, it remains to be seen exercise due oversight functions and hold whether the Georgian society will approach autorities accountible to their citizens these challenges with loyalty to democartic (Lutsevych, 2013). Such weaknesses of civil ethos, transparency and due process (Cecire, society in Georgia can be explained by 2012). number of aspects, among which, most Furthermore, speaking of the curent state important can be the Soviet legacy of and extent of Georgia’s civic and political totalitarian communist regime, absence of culture, it is important to highlight that the class cleavages, clientelism, political patronage recent student protests movements, which and civic apathy. was triggered due to the leak of shocking video Due to highly unequal distribution of evidence of torture and abuse, including rape, from military, political and economic power Tbilisi’s notorious Gldani Prison (Dolidze & de among the countries across the world, as just Waal, 2012) can be regarded as positive step as well as unjust actions of global powers or towards the direction of democartic superpowers can significantly affect citizenship. democartic outcomes in much less powerful, Accordingly, unlike to the previous youth small countries such as Georgia. Hence, mobilizations in Georgia, influenced mostly speaking specifically of Georgia’s case, by concrete political forces, in most cases by although Russia’s neo-imperialistic attitudes certain political parties or movements, this and politics, partcularly over the last twenty new student movements were marked by its year period, can be hardly regarded as impartiality, inclusivness and demands for constructive for Georgia’s stathood and more democarcy and stronger citizens role democracy, Western partiality (Cecire, 2012) in shaping public policies and bringing social and double standards failed either to foster change (Lutsevych, 2013) rather intereting in genuine democartization proceses in the victory of concrete political groups. Georgia. However, it is also important to stress that While, many officials in the West saw the Rose despite the Rose Revolution was percieved by Revolution as having been led by Western-oriented the West as a triumph of civil society (Lutsevych, reformers (Mitchel, 2012), many severe 2013, p. 2) largely due to twenty years of wrongdoings and human rights abuses done Western democarcy assitance aimed at supporting by the Saakashvili’s regime against its fellow

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citizens were overlooked and not assessed (Lutsevych, 2013, p. 3) that will based on the and studied properly. Therefore, the concept of democratic citizenship. question is to what extent the self- However path towards relatively more just proclaimed strong pro-western attitudes by world, specifically through the certain leaders or political groups should be democratization process can be complex and automatically counted by the Western might consist of several stages. In the first institutions as pro-democratic and liberal stage, for instance, through introducing the ones. Since, as the recent Georgian example concept of democratic citizenship at the clearly demonstrates it is possible to build country level, by means of education, free authoritarian system even under the guise of media or civil society organizations, can lead neoliberal values such as free market or to much more stronger and viable civil laissez-faire economy. society capable to promote the rule of law, protect human rights and hold national Perspectives and major challenges to governments and businesses accountable to pursue justice domestically and globally: the public. Apparently, such optimistic closing remarks outcome should be expected because of active, inclusive, participatory and consensus The aim of this paper is to analyze the based approaches this type of citizenship linkage between attempts to establish presumes to resolve existing conflicts democratic system and pursuing global peacefully and uphold universal human justice. Based on many observations and the rights nationally. employed studies in this field, it can be Consequently, in the second stage, the civil concluded that democracy is essential part of society groups, created at the national level just societies whether at the national or in the first place, can also easily become global level. Hence, despite globalization agents or parts of global civil society phenomenon, which had been set in motion two movements or INGOs, mainly through such decades earlier (Chandhoke, 2007, p. 3018), phenomena as modern communications networks and leading to growing role and influence of new information technology (Held, 1997, p. 253). international networks and organizations Given that, shared with the universal and diminishing capabilities of national principles and concepts of democratic governments to tackle new challenges citizenship, the newly emerged civil society effectively, even within their controlled groups will be able not only to resist the boundaries, justice globally still can be symbols of unbridled globalization (Chandhoke, achieved through the organized civil power 2007, p. 3018) but also to question critically

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the actions of power hungry states and profit- driven markets (Chandhoke, 2007) and hold them accountable to general public. Bibliography Finally, speaking of domestic and global Westheimer, J., & Kahne, J. (2004). What challenges along the path leading to global kind of Citizen? The Politics of Educating justice specifically via democratization for Democarcy. American Educational Research Journal , 237-269. process, from the perspective of the post- Soviet Georgia, several internal and external Wheatley, J. (2005). Georgia From National Awaking To Rose Revolution. Aldershot: factors can be identified. Hence, among Ashgate Publishing Limited.

internal factors, most important of them can Burroughs, G. (2011). Introduction. In G. be ascribed to the Soviet legacy of the Burroughs, Z. Rukhadze, M. Kvatchadze, L. totalitarian rule, reflected in weak civil Gaprindashvili, & L. Izoria, Democracy and Citizenship (pp. 6-23). Tbilisi: IFES Georgia. society, civic apathy, corruption, informal rules of clientelism and political patronage, Barrington, L., Bosia, M. J., Bruhn, K., Giaimo, S., & McHenry, D. E. (2010). intolerance towards minority groups and Chapter 3: Economic Class, Development, poverty. As for specific relationship between and Globalization. In L. Barrington, M. J. Bosia, K. Bruhn, S. Giaimo, & D. E. poverty and democratic outcome, many McHenry, Comparative Politics: social scientists argue that as income rises, so structures&choices (pp. 62-101). Boston: WADSWORTH CENGAGE Learning. does civic activism (Clover, 2012). Whereas, given the sharp disbalances of Beisinger, M. (2002). The Tide of Nationalism and the Mobilizational Cycle. In power that exists among the countries in M. Beisinger, Nationalist Mobilization and the today's highly interrelated world, most Collapse of the Soviet Union (pp. 47-102). New York: Cambridge University Press. important external factors that might have significant effects on democratization Bozac, Z. (2012). Global Democracy: Coercion - Based Approach. CEU Political processes in the post-Soviet country such as Science Journal , 434-454.

Georgia can be related to how just and Caucasus Research Resource Centers. (2010 democratic the policies and actions of global л 30-November). Caucasus Barometer 2010, superpowers as well as international financial Georgia. Retrieved 2013 л 18-February from Caucasus Research Resource Centers: institutions will be particularly with respect Online Data Analysis: to small countries. http://www.crrc.ge/oda/?dataset=4&row= 106

Castells, M. (2008). The New Public Sphere: Global Civil Society, Communication Newtork, and Global Governance. The ANNALS of the American Academy of Political and Social Science , 78-94. 81

Mikhail Shavtvaladze Effects of Democratic Citizenship on Pursuing Global Justice

Nagel, T. (2005). The Problem of Global Cecire, M. (2012 л 4-December). Don't Justice. Philosophy&Public Affairs , 113-147. Rush to Judgement on Georgia. Foreign Policy Mitchel, L. (2012 л 15-November). , pp. 1-3. Georgia: Four Observations and Four Questions from the Georgian Election. Retrieved 2012 л Chandhoke, N. (2007). Global Civil Society 18-November from EurasiaNet: and Global Justice. Economic&Political Weekly http://www.eurasianet.org/node/66186 , 3016-3022. Sen, A. (2009). The Idea of Justice. Cambridge, Clover, C. (2012 л 23-February). Analysis: Massachusetts: The Belknap Press of "Russia: A Kremlin of crude calculations. Harvard University Press. Retrieved 2013 л 21-February from Financial Times Web site: Shavtvaladze, M. (2012). Saakashvili's Rule: http://www.ft.com/intl/cms/s/0/839d01c Compromising Democarcy, Unsuccessful 4-5e0f-11e1-8c87- Efforts to Strenghten Georgian State and 00144feabdc0.html#axzz2LVyk6nOU the August War 2008. In M. Shavtvaladze, Post -Soviet Transitions and Conflict Resolution: Encarnacion, O. G. (2005). The Follies of Attempts to build Democartic Nation-State in an Democartic Imperialsimm. World Policy Ethnically Diverse Country: the case of Georgia Journal, Vol.22, No. 1 , 47-60. (pp. 1-49). Saarbrucken: LAP LAMBERT de Waal, T. (2012 л 5-December). No Academic Publishing Gmbh&Co.KG. America in the Caucasus. Foreign Affairs , pp. 1-5.

Dolidze, A., & de Waal, T. (2012 л 5- December). A Truth Commision for Georgia. Retrieved 2012 л 5-December from Carnegie Endowment for International Peace: http://www.carnegieendowment.org/2012/ 12/05/truth-commission-for-georgia/eqdm International Republican Institute. (2012 л 5-January). IRI Releases Expanded Nationwide Survey of Georgian Public Opinion. Retrieved 2013 л 21-March from International Republican Institute (IRI): http://www.iri.org/news-events-press- center/news/iri-releases-expanded- nationwide-survey-georgian-public-opinion

Held, D. (1997). Democarcy and Globalization. Global Governance, Vol.3, No.3 , 251-267.

Lutsevych, O. (2013). How to Finish a Revolution: Civil Society and Democarcy in Georgia, Moldova and Ukraine. London: CHATHAM HOUSE.

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The Limits Of Kantianism Towards A Project Of Global Justice

Daniel NUNES PEREIRA1, Universidade Federal Fluminense, Brazil

Abstract

estern societies believe they can improve human settlements all around the world by universal standards of justice, concerning mainly the distribution of wealth and sound democratic institutions. Such concern arises from the reflections regarding the hodiernal Wworld condition, which is, at large, vile and unjust. These two ways of improving human condition have their mains ideas established on the work of Immanuel Kant. This paper intends, therefore, to understand and foresee the limits and boundaries of these ideas specifically on the contemporary world – plural, polysemic and filled with theoretical uncertainties.

Keywords: Kant; Global Justice; Cosmopolitanism; Human Rights; Morality

1 Daniel Nunes Pereira, 26, is M.A candidate in Political Science and L.L.M. candidate in Sociology & Jurisprudence, both at Universidade Federal Fluminense (UFF) in Brazil. He received his Bachelor in Jurisprudence at Universidade Federal Fluminense in 2010, and on the same year attended at CPE in European History at the Universiteit Utrecht (U.U.) in Netherlands. His interests and fields of research include Political Theology, Philosophy of Law, Political Philosophy and Psychoanalysis. Email: [email protected]. English revision: Marcos Ceia; Email: [email protected] Daniel Nunes Pereira The Limits of Kantianism

I its countries. This scenario is not new, since the world has already testified rom the concern that the world at Kipling’s “White Man’s Burden” – in this large is unjust arises the issue of bleak scenario Kantianism reaches its limits: F Global Justice, i.e., the idea that we should this theoretical universal moral and can improve society all around the world by shared citizenship overcome individuals and universal standards of justice, concerning traditional and endangered cultures? The mainly the distribution of wealth and sound understanding of human rights through democratic institutions. Through these two Kantian “lenses” looking forward to a main concerns lie two fundamental ideas, Global Justice challenges the tensions namely, cosmopolitanism (all human ethnic amongst increasing globalization, the so- groups belonging to a called "clash of civilizations", the crisis of single community) and universal morality, universalism, and the attempt to impose the i.e., Immanuel Kant’s theoretical constructs. cultures strengthened localisms. Though cosmopolitanism and universal morality roots until Hierocles and the This study deals with these aporias Platonists, respectively, it was Kant who of Kantian thought through the following gave it the consistence known today. expediency: a) review of the origins and meanings of cosmopolitanism and moral The Kantianism imbued in these two universalism in Kant b) Comments on the ideas is somewhat a response to Hobbes’s possible subversions of Kantian claims about the relation between justice and assumptions c) Commencement of solutions sovereignty, since the later understands to the problems raised from Jürgen political legitimacy and the principles of Habermas thought. justice on collective self-interest, rather than on any irreducibly moral premises.

II These two ideas, moral universalism and cosmopolitanism, can lead to dangerous

pathways on the international community. Cosmopolitanism as a worldview is Since every man and woman belongs to this not something new. It probably emerged in single global community that has its own ancient Greece, around the fourth century portentous universal moral with standards of B.C., alongside the conquests of Alexander justice, this same community shall protect the Great in the East. With these them by force, if necessary, through some of achievements, the Greek citizen began to

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think beyond the horizons of the city-state. principis superioris - (Schmitt, 2006: 152-166). Hellenism intellectually grew through The Absolute monarchs, towards the goal of contacts with other cultures and people, maintaining internal control over its own enhancing the ethos of citizen of the world territory, guaranteeing them the right of war (Brock, Brighouse, 2005: 3). Philosophically, and peace in international relations, included the Stoics, v.g., were the forerunners of new terms inscript on the "state of nature" cosmopolitanism, since they thought that Theory (Hobbes, 2005), even in self-acceptance was the way to reach things International Affairs. With the transition such as family, homeland and the human from the Middle Ages to the Renaissance, race in general sense. (Brock, Brighouse, pacifism resurfaces among Christian thinkers 2005: 4-8). from the fourteenth century as, for example, the King of Bohemia Jiříz Poděbrad However, cosmopolitanism consigning the Congragatio Concordiae understood as matter of Jurisprudence (Odložilik, 1965), and Erasmus of (Rechtslehre) is a Kantian novelty. For Kant, Rotterdam proposing his Quaerela Pacis cosmopolitanism is not a philanthropy or a (Erasmus, 2004). fanciful representation, but it is a necessary complement to the unwritten codes of civil At the mainstay of these ideas, Kant law and international law to enable the underlies his conception of Perpetual Peace realization of fundamental principles aimed in determined conception of public law, that at the ideal of perpetual peace. (Kant, 2009: leads to some kind of Cosmopolitical 12-66). Jurisprudence as its highest expression

With the apparent ending of the Kantian philosophy is the maximum religious wars in Europe, the Peace of expression of the Enlightenment, and as Westphalia of 1648 consolidated the such, has a universal character. The starting required frames for a European international point of his analysis does not differ law, no longer based on the two highest substantially from other Illuminists such as medieval authorities – Pope and the Rousseau, Montesquieu or Hume. Kant Emperor, but based on the sovereignty of understands the relationship between the states. Therefore, it seemed to be the end of States as return to the “state of nature” in the medieval doctrine of Just War (justum some extent, which is a state of conflict and bellum), and sovereign states become the only injustice in which only states are subject of ones in a position to declare the legality of international relations and recognize no the war, no longer needing the approval of a higher authority. That is, according to Kant, higher authority – non expectata auctoritate Daniel Nunes Pereira The Limits of Kantianism

the main cause of the existence of a economic egalitarian commitments, then the permanent state of war between them. So, same is true for global justice. But the under Kant’s ideas, the overcoming of the political dimension of cosmopolitan justice absolute sovereignty of states and the is the focus here studied, and this concept of overcoming of war are processes that must cosmopolitanism is based on Kantian ideas go together. But the ultimate goal is to carry of individual rights and international law out a cosmopolitan project to all (Habermas, 1996: 20) Humankind and every individual, not Thus, the cosmopolitan kantian restricted to Europe or the so called jurisprudence is based on the fact that the Respublica Christiana. earth has a finite, spherical surface, and In contrast, the cosmopolitan therefore, humanity cannot spread to conception considers that the primary infinity, but is limited to live on this territory interest of global justice is to ensure justice common to all mankind. Although the for individuals in the world as a whole. It definition given by Kant of the earth as a assumes that all people, no matter where terraqueous globe – a mathematician- they are, have the right to equal care as geographical setting – such definition is citizens, and the purpose of justice is to closed and limited to the natural conditions ensure that global institutions and that make the possibility of interaction, international relations are governed by the however, composed towards some principle of individual equality. This means dynamicity. The world, of which Kant that global justice can not only be concerned speaks here, is man's place, one in which it with how states relate to each other, even if carries out its activity. And man, as an it is conditioned by the requirement that inhabitant of the land, is naturally a traveler. basic human rights must be domestically Thus, Kant saw humanity as a genuine respected. Under such cosmopolitan potential community for interaction – understanding, global justice would require, pacific, but not friendly. Kant routed on above all, that all societies should maintain some cosmopolitan Law the possibility of and aid their domestic institutions and social Mankind achieving the establishment of a policies that regard human dignity. perfect political organization.

In summary, the cosmopolitan This particular cosmopolitanism approach to global justice regards a depends on a specific notion of Men and its globalized liberal and egalitarian justice, and, Telos. In this sense it is noticeable that the to this point, one may assume some human being is differentiated in relation to

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other entities for being understood as a such a project is difficult in a pluralistic and "terminal end" (Scopus) under the mutable society. teleological order of the world. But what

does it means being terminal end of Creation? What qualifies Man as such? III According to Kant, Man, whilst existential category, needs no other purpose as a Contemporaneously to Kant the old condition of its possibility. It is therefore an Iberian colonialism had already entered into unconditioned being because it is not crisis, but another form of geopolitical and restricted simply to the cosmological or ethnical exploitation emerged (Cooper, 2005: mechanical laws of cause and effect and do 113) that accentuated during the so-called not serve (or should not serve) to the neo-colonialism, especially with the disputes purposes of any other being. This that would later foment the Great War. independence on the chain of purposes is Anyway, in both events of imperialist accredited by his supersensible capacity of practice there was some discourse of freedom to volition and rationality. "Westernization" (Stuchtey, 2011), then Especially, in this morality lies the centrality called “Christianization of the Barbarism” or of human as terminal end of creation, which later the "White Man's Burden." In such is rooted in a triple existential capacity: a discourses were laying beliefs that a universal free, rational and moral entity. These three and eminently true, unfeigned and veritable assumptions also form the basis of human ethnocentric morality should be taken and dignity, so that the just man is worthy of disciplined to other people (Stuchtey, 2011), being treated as an end in itself because it is since they all belonged to the same great and essentially free, rational, and therefore ineffable Godlike Earthly Project erected on autonomous. eurocentrism - it was therefore a kind of

Such dignity is deduced from a cosmopolitanism. specific understanding about morality. This But, in contrast, what is the is the stance of the Kantian metaethics humanistic foundation of Kant's system concerning a universal ethea, namely, cosmopolitan thesis? It is truly based on the universally applicable for all similarly very idea of communitarian ownership of situated individuals, regardless of race, the surface of Earth. Originally under the culture, sex, religion, nationality, sexuality or ‘state of nature’, whilst physical possession any other distinguishing feature. Of course, (Possessio phaenomenon), all individuals have the same rights on the ground. The Earth is, Daniel Nunes Pereira The Limits of Kantianism

in this sense, a universal good. The very nowadays called world public opinion. “sphericity” of the Earth, being itself (Habermas, 2002: 197). circumscribed, constrains individuals and Kant himself, during his lifetime, nations to not isolate themselves infinitely, criticized the subverted cosmopolitanism of contracting, however, some sort of the imperialist European nations, and there relationship and, therefore, affect each other, are interpreters of the philosopher of what compels the creation of rules Königsberg that update his critiques, concerning the rights that should enables bringing it to today's reality. Western these volitions to coexist harmoniously. societies are structured upon capitalism and A central aspect of Kant's have been thriven in a multicultural context, Cosmopolitan Theory is the limitation of the composed of very different identities, under concept “visitation Rights” (Besuchsrecht). the ideological background of an alleged This has significant implications when its homogenization and universalization. The understood as opposed to the ethnocentric multiple cultures in those societies are part practices of European colonialist nations of a general culture where the logic of contemporaries to Kant. According to the capital puts its manifestations in a network author, these so-called "civilized" states were of mass production oriented towards unfair and abusive because they took the endless consumption. There is a simple right to visit the foreign land as a recrudescence of the interrelationships right of conquest and consecutively led all between individuals, understood as products forms of oppression to colonized peoples. and concomitantly producers of social For Kant, the European colonialists powers reality, magnifying the individualistic lived through a humbug, because on one organization and individualism. Considered hand they righteously follow their rites of as an ideology and moral base structuring of worship and religious orthodoxy, but on the capitalist society, individualism is under other, act on unfairly and vile ways towards constant mutation, showing strong tendency its “colonized subjects”. However, the to radicalization, amid an abundance of complaint and the combat against such human resources which, strictly speaking, injustices become plausible within the would be sufficient to provide human cosmopolitan speech, in the sense that a happiness. single violation of rights in one corner of the In this reality, there is a formalist Earth should be felt in every part of the abstraction of Kantian theories, pursuant to world. It is in this sense that Habermas currently invoking Aristotelian conviction points Kant as one who anticipated the

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that moral judgment is necessarily limited to "Western" is an abstract and fluid certain socio-cultural contexts, leading to an formulation, beneath it a pluralistic mosaic alleged waiver of the needing for of various traditions, sometimes emancipatory potential of moral antagonistic, being displayed. universalism, relinquishing to direct a It is considered that the possibility of scathing moral criticism towards unjust incorporating the idea of hodiernal standards social structures. Overcoming this problem of Human Rights as a pathway to continue of modern atomism using universalist ethics such tradition through a reinterpretation of of good only hampers the first issue, since the principle of Human Dignity, in order to that would rely on precursors of moral avoid an imperialist imposition of any legal universalism, id est, in a morality grounded code. However, the possibility of any in religious and cosmological universal moral principle cannot be imposed weltanschauungen, even more difficult to in relation to specific cultural contexts of the reconcile alongside the hodiernal world simply because any Ethical Discourse postmetaphysical thought than to the or Universality principle will not be teleological worldview of Aristotle performed independently at any real (Habermas, 1986: 125) Discourse of Praxis (Habermas, 1986). The Cultural relativism had undeniable principle of Universal Morality and a relevance towards raising questions about pragmatic transcendental reasoning (derived the alleged superiority of one race, or to from assumptions arisen from inevitable question the basis on which rested the speeches of a specific Reason) are not claims that classified people according to sufficient, however, to substantiate standards stages of development. However, the ideal of legal and moral demeanors. of tolerance then fetched currently The legitimacy of Modern encounters a series of obstacles supplied by Cosmopolitanism Theory and its Human the design of the relativist position, which Rights Laws must necessarily pass through seeks to establish it negating the possibility complementarities between individualism of judgment on behaviors of different and collectivism or communitarianism, people around the globe. Regarding the processes that are no longer merely analysis of an alleged Westernness of conflicting and, still, retain a tension and a Human Rights Standards, which would complementariness essentials for the compromise with a European cultural integration of morality in historical and tradition (perhaps understood as social contexts enabling to join Iura humana Imperialist), it is argued that the category within culture and society, not as an outer Daniel Nunes Pereira The Limits of Kantianism

levy, but as part of an institutionalized tidal Hobbes, Thomas. 2005. Leviathan oder process, complementing the many other Stoff, Form und Gewalt eines kirchlichen und staatlichen Gemeinwesens. Hambur: collective processes of political nature. Meiner Verlag.

Kant Immanuel. 2009. “Perpetual Peace, References a Philosophical Sketch”. In. An Answer to The Question: What Is Enlightment? London: Penguin Books.

Brock Gillian, BrighouseHarry. 2005. Odložilík, Otakar. 1965. The Hussite The Political Philosophy of King. Bohemia in European Affairs 1440– Cosmopolitanism. Cambridge: 1471. New Brunswick: Rutgers Cambridge University Press. University Press.

Cooper, Frederick, 2005. Colonialism in Schmitt, Carl. 2006. The Nomos of The Question: Theory, Knowledge, History. Earth. New York. Telos Press Oakland: University of California Publishing. Press. Stuchtey, Benedikt. 2011. “Colonialism Erasmus, Desiderius. 2004. Complaint and Imperialism, 1450-1950”. In. of Peace. New York: Cosimo European History Online, Publishing. Mainz: Institute of European History, 2011, retrieved: Feb. 02, 2013. Habermas, Jürgen. 2002. A Inclusão do Outro - Estudos de Teoria Política. São Paulo: Edições Loyola.

Habermas, Jürgen. 1996. “Kants Idee des ewigen Friedens – aus dem historischen Abstand von zweihundert Jahren“. In: Lutz-Bachmann, M., Bohman, J. 1996. Frieden durch Recht. Frankfurt: Suhrkamp Verlag.

Habermas, Jürgen. 1986. “Moralität und Sittlichkeit. Treffen Hegels Einwände gegen Kant auch auf die Diskursethik zu?” In: Kuhlmann, Wolfgang. 1986. Moralität und Sittlichkeit. Das Problem Hegels und die Diskursethik. Frankfurt: Suhrkamp Verlag.

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A Boundedly Rational Analysis of Global Distributive Justice Alexandru VOLACU1, National School of Political and Administrative Studies, Romania Iris-Patricia GOLOPENTA2, National School of Political and Administrative Studies, Romania

Abstract

n the present paper we analyze two prominent global distributive justice theories, i.e. Pogge’s Global Resource Dividend theory (1994) and Dorsey’s maxificing welfarism (2005) under an assumption of I bounded rationality. We consider that the agencies responsible for distributing resources are informationally constrained in regard to the assessment of economic positions in society and cognitively constrained in regard to the decision making process within the agency. We argue that under these conditions the distributive patterns prescribed by both theories can be severely distorted. Further, in Dorsey’s case bounded rationality can even lead to a complete failure of the theory, since not only are the resulting distributions sub-optimal if we introduce the possibility for a single mistake in the identification process, but they can also be completely redundant by prescribing distributions which are not capable of lifting a single citizen to the minimum level required for the fulfillment of basic needs. We further show that for both theories the identification problem becomes more severe and that the agencies are more susceptible to make mistakes in circumstances of extreme poverty, i.e. the circumstances primarily targeted by the theories. Aside from this main result, we also obtain three secondary results: 1. we extend the ongoing debates in political philosophy between ideal and non-ideal theories and in particular between fact- insensitivity and fact-sensitivity, 2. we provide a preliminary defense of a proportional distributive principle for global justice and 3. we provide a new starting point for the construction of arguments regarding the nature of the agency (e.g. global government, national governments, UN institutions, international NGOs) entitled to distribute resources in global justice theories.

1 Alexandru Volacu is a 2nd Year MA student in Political Theory and Analysis at the Faculty of Political Science, National School of Political and Administrative Studies, Bucharest, Romania. He is a member of IAPSS since 2009. He has previously published scientific articles on political philosophy and political science in the Romanian Journal of European Affairs, the Romanian Journal of Society and Politics, Revista de Stiinte Politice. Revue des Sciences Politiques, Perspectives in Politics and the Sphere of Politics. His main research interests include: Political Philosophy, the Philosophy of Science, Public Choice Theory, Game Theory, Spatial Analysis and Political Ethics. E-mail address: [email protected] 2 Iris-Patricia Golopenta is a 2nd Year MA student in Political Theory and Analysis at the Faculty of Political Science, National School of Political and Administrative Studies, Bucharest, Romania. She is currently an intern at Romanian Academic Society. Her research interests include: Normative Theory, Political Philosophy, Ethics, Institutional Approaches of Political Science and Gender Studies. E-mail address: [email protected]

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Keywords: bounded rationality, distributive agency, distributive pattern, Dorsey, global distributive justice, non- ideal theory, Pogge Motto: “Should the facts be allowed to spoil a good theory?” (Lovell, 1986, p.120)

Introduction and adapts to the nature of the situation each time the parties are required to agree ver since Rawls’s (1993) first on the principles of fair distribution and important contribution to global cooperation. E justice theories, the field has become One of the main characteristics of one of the most fertile debate forums in global distributive justice theories is that they political philosophy. Theories of global do not take into account a significant distributive justice3 also share a common root number of empirical circumstances, which with the Rawlsian line of thought, with some when considered, could completely alter the of the most important theories in this strand distributive patterns of the theory. We argue being considered extensions of the that one such circumstance is the fact that difference principle (see Rawls, 1971, p.72), human beings are cognitively and although Rawls himself opposed such a view informationally constrained, or in Simon’s by stating that “the principles of justice for terms boundedly rational (1976), and that as the basic structure of society are not suitable a consequence they will not be able to as fully general principles. They do not apply accurately identify in all instances the to all subjects […] or to the law of the members to which they should distribute peoples” (Rawls, 1993, p. 39). Instead, Rawls goods if they follow a prescribed distributive argues that they should be systematically pattern. Our purpose in this paper is to constructed by a procedure that modifies show that for at least two theories of global

3 Among the prevalent cosmopolitan distributive justice, one which follows the defenders of global distributive justice we mainstream position of extending the can find, inter alia, Pogge (1994), (2001), (2002), Beitz (1979), (2000), Barry (1999), difference principle to a global framework, Mollendorf (2002), Tan (2004). Some of its i.e. Pogge’s GRD approach (1994) and one prominent critics (which mostly defend Rawls’ conception of global justice) include: which is derived on a consequentialist basis, Rawls (1993), (1999), Dworkin (2000), Reidy i.e. Dorsey’s maxificing welfarism (2005), the (2004), Nagel (2005). This list does not even begin to scratch the surface of the literature prescribed patterns of distribution are in question but it does manage to briefly susceptible to lead to perverse outcomes. outline some of the most important contributions.

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The paper is divided into seven According to Pogge, the present parts, excluding the introduction. In the first global order is characterized by political and two parts we present a brief overview of the economical interdependency that is very theories of global distributive justice as likely to persist in the future. Hence he developed by Pogge and Dorsey. In the third expresses three egalitarian concerns part we present a brief overview of the regarding the deficiencies in mitigating concept of bounded rationality and explain inequalities: 1. citizens of different nations the sense in which it will be used in the benefit from unequal chances to influence paper. In the fourth part we explain the the transnational political decisions, 2. general context in which the bounded equally talented and motivated individuals rationality assumption is relevant for do not possess equal chances to obtain political philosophy, namely the debates public goods, services and positions, between ideal theories and non-ideal regardless of their nation of origin and 3. theories, and in particular between fact- social and economic inequalities are not used insensivity and fact-sensitivity. In the fifth in the benefit of the world’s worst off part we explain the distributive patterns positions. (Pogge, 1994, p.196) These three prescribed by Pogge and Dorsey by observations are substantially compatible capturing them in a common structural with Rawls’s two principles of justice that framework. In the sixth part, where the bulk state the following: 1) “each person is to of our argument is concentrated, we show have an equal right to the most extensive what effects the introduction of a bounded scheme of equal basic liberties compatible rationality assumption could have on the with a similar scheme of liberties for others” distributive patterns prescribed by Pogge (Rawls, 1971, p.53) and 2) “social and and Dorsey. In the final part we draw the economic inequalities are to be arranged so conclusions of the paper and lay the that they are both (a) to the greatest groundwork for potential discussions which expected benefit of the least advantaged and could stem from the present paper but were (b) attached to offices and positions open to not included here due to spatial constraints all under conditions of fair equality of or due to the different scope of the paper. opportunity” (Rawls, 1971, p.72). Given the similarities, the questions 2. Global distributive justice – Pogge and that naturally rise are whether the Rawlsian Dorsey’s perspectives original position could be applied to the 2.1. Pogge’s GRD approach to global international order in all its complexity and distributive justice how should it be constructed on a meta-

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theoretical perspective? The specialized not as historically arbitrary limits of states as literature identifies several answers to these Rawls does, but rather as the result of questions. Rawls discusses two possibilities: violence and coercion. Thus, their 1. initially the principle of justice is applied distributional significance, as they determine to the basic structure of each society and the contextual life of individuals benefiting subsequently in a second round of and controlling its land and all its natural negotiations between the state’s resources is not justified. Therefore, the representatives in order to construct affluent states and its citizens who international principles of justice or 2. the unconditionally benefit from public goods application of a single-step process under and open positions, development and the form of a global original position. Pogge resource opulence have the moral (1994), argues in favor of the first option as responsibility to offer foreign aid to those it seems to comply with the egalitarian who are dealing with daily poverty, mortality concerns formulated above and he uses it in and malnutrition and support the order to both clear the methodological universalization of human rights to a background of his research and also defend “standard of living adequate for the health his conception of global justice: “what is and well-being of oneself and one’s family, needed is a principle that asses alternative including food, clothing, housing and global economic orders in terms of their medical care” 4. Moreover, the moral duty of distributive effects, just as his [Rawls’] these states is even greater since they are principle assesses alternative ways of directly responsible not just for alleviating structuring a national economy” (Pogge, poverty, but also for perpetuating it, taking 2001, p. 16). into account the role and rationale off some He basically criticizes Rawls’s lack of of the international economic institutions precision in arguing about the nations and its that have been founded and consolidated borders and is trying to counter the particularly at the initiative of these states following highly-idealized case: “there really (Pogge, 2001, p. 15). is a clear-cut distinction between peoples How can foreign aid as duty of the and other kinds of groupings, that every global economic order be transposed into person belongs to exactly one people, and proper mechanisms to justify the state’s

that each national territory really does, nearly enough, contain all and only the members of 4The Universal Declaration of Human Rights, accessed at: a single group” (Pogge, 1994, p.197). Pogge http://www.ohchr.org/EN/UDHR/Docu addresses the problem of national borders ments/UDHR_Translations/eng.pdf, at 19.02.2013.

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negative responsibility towards the other Pogge also identifies 4 problems that states? Pogge formulates one institutional the GRD must confront, which are as proposal, i.e. the Global Resource Dividend5 follows: 1. the risks of establishing (GRD) that could be interpreted as a type of prohibitive taxes and block economic difference principle and may be successfully sectors of states, 2. the dividend imposed on defended by an egalitarian conception of the cultivation of basic commodities might international justice. The GRD implies that lead to increasing their prices, which will people should pay a proportional tax on the negatively affect the worst-off positions, 3. resources6 they extract from the territory the necessity to anticipate the worst-off within its national borders, weather they use positions of the future and therefore overtax it themselves or export it. The GRD is the limited resources of the world or the therefore a consumption dividend that highly dangerous pollutants and 4. the tax discriminates between the amount of the should be based on resources and pollutants taxes, proportionally to how much value whose extraction should be easily monitored each takes from our planet (Pogge, 1994, p. and estimated. (Pogge, 1994, p. 204) 199) and automatically leads to higher prices The issue of global poverty could for natural resources. Pogge argues that the therefore be approached and solved if the dividend could be interpreted as a sort of interdependencies of the world were Lockean proviso, with the mention that the perceived in a constructive perspective: the dividend does not bear the proviso’s lack of affluent countries are due to expand their precision, on the contrary: anyone can enjoy advantages and enter into a global bargaining the earth’s resources to the fullest, but in process with the other countries, while the return must share some economic benefit. poor are due to accept the economical, The amount of money shall therefore be technological and know-how abilities that used by the governments in mitigating the the rest posses in their advantage. Hence, socio-economic global inequalities and the GRD could be a proper instrument to directly offered as aid to the poor countries, try. based both on their per capita income and population size (Pogge, 1994, p. 1999). 2.2.. Dorsey`s maxificing welfarism An alternative perspective on how global justice should be achieved is 5 In a previous paper called the Global Resource Tax (Pogge, 1994, p. 199). entertained by Dale Dorsey who argues 6 Pogge does not limit the concept of national resources just to land, but extends it to water, infrastructure, education and even air. 103

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against human rights7 as a main justifying The human rights approach would have instrument for achieving global justice, for argued in favor of the distribution that “this language cannot form a plausible attempted to ensure a basic level of needs to foundation for international obligations and all citizens, because no governmental action […] although some thinkers claim that they or institution is legitimized to infringe on posses powerful rhetorical appeal and thus their rights, as possession of basic needs is might profitably be used to mobilize action considered to be an obligation and forms a designed to reduce or eliminate suffering, side-constraint on the social policy (Dorsey, human rights are not sensitive to the 2005, p. 568). However, according to concerns of justice that exist in recipient Dorsey, when dealing with deprivation, nations” (Dorsey, 2005, p. 562). Dorsey starvation or severe poverty, this approach develops a bilateral approach, focusing both fails. on the obligations that the rich countries Dorsey’s main hypothesis is “that have to the poor ones, but also on the many theories of justice are unable to domestic justice of the second, meaning the capture […] is that fulfilling basic needs has proper way that their national institutions priority” (Dorsey, 2005, p. 566). Thus, ought to be organized to account for a survival is the goal of legislators in very poor particular conceptions of justice. Actually, countries and rights are violable only when the concern regarding the internal the benefit is great enough and there are framework of justice and its consistency enough individuals who could be saved with the nature and type of international aid (Dorsey, 2005, p. 571). Otherwise stated, is essential, for any kind of intervention Dorsey does not avoid at all the concept or would be prone to fail if they completely rights, but more likely seeks to maximize neglect the domestic circumstances of their fulfillment (Dorsey, 2005, p. 572) - justice. For instance, in the very poor instead of arbitrary distributing between countries, in the midst of crises or a individuals - and calls this way of reasoning powerful famine, fair distribution could not maxificing. However, the theory is incomplete possibly be achieved according to Rawls’s because it fails to respond to a minimum of difference principle, for prioritizing the two aspects: 1) situations in which resources worst-off implicitly means decreasing the are left over and all have been brought up to goods for the ones that are barely able to the sufficient level (Dorsey, 2005, p. 578) 2) avoid starvation and creating a greater harm. situations in which resources are left over,

but are not enough to bring any further 7 Even the basic rights that assure human persons to the sufficient level. (Dorsey, needs, in the manner that Pogge argues.

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2005, p. 578). Thus, in Dorsey’s view, global main objections to adopting a justice should not be concerned with human comprehensively rational view of human rights, but with the desiderata of assuring the nature can be brought: 1. even casual level of living decency for the greatest empiricism leads to the conclusion that even number of individuals. in quite simple decision problems, most economic agents are not maximizers, i.e. do 3. The importance of bounded rationality not scan the choice set and consciously pick for theories of global distributive justice a maximal element from it, 2. maximizations 3.1. Bounded rationality – an overview of this type are sufficiently difficult to For a long time mainstream prevent people from acting as in this way in economic theories as well as their most practical situations, even if they have applications in non-economic fields (e.g. maximizing intentions, 3. polls and public choice theory, the economic analysis experiments widely confirm that individuals of law, the new economic history) upheld a fail to conform to at least some of the tradition of adopting the “homo rational choice postulates, 4. laboratory economicus” view or phrased in other experiments show that the conclusions of terms, “comprehensive rationality”8, (Jones, analysis based on strong rationality 1999, p.299) as a core assumption. However, assumptions are unrealistic and 5. the some authors argue that “the fully rational conclusions of rational analysis sometimes man is a mythical hero who knows the seem unreasonable even on the basis of solutions of all mathematical problems and simple introspection (Aumann, 1997, p.2). can immediately perform all computations, In order to counter many of the regardless of how difficult they are. Human deficiencies met in models based on beings are very different. Their cognitive comprehensive rationality, Simon introduces capabilities are quite limited. For this reason the concept of bounded rationality, which alone the decision behavior of human beings places limits on both an individual’s “ability cannot conform to the ideal of full to perform” and on his “ability to make rationality” (Selten, 1999, p.3). At least five correct decisions” (Simon, 1976, p.39), since they act in a “world of limited epistemic,

8 Jones identifies the following assumptions cognitive, and analytical opportunities” (Sen, which cumulatively characterize 1997, p.768). Simon’s basic idea is then to comprehensive rationality: 1.preferences are defined over outcomes, 2. the outcomes are “replace the global rationality of economic known and fixed and 3. decision-makers man with a kind of rational behavior that is maximize their utilities by choosing the alternative that yields the highest level of compatible with the access to information benefits (Jones, 1999, p.299). 105

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and computational capacities that are (for overviews of studies favoring the actually possessed by organisms, including empirical superiority of bounded rationality man, in the kinds of environments in which to strict views of rationality see, inter alia, such organisms exist” (Simon, 1955, p.99). A Conlinsk, 1996, Camerer, 1998 and Selten, way to understand the concept of bounded 1998). We therefore consider that following rationality, in particularly in respect to the considerable amount of proof which informational and cognitive constraints9, is supports the bounded rationality hypothesis, by following Lipman’s (1995, p.42) its incorporation into global distributive interpretation of agents as information justice theories is justified, as these sorts of processors. In this view, the agent receives theories are economic by construction, albeit inputs (information external to the normative, especially when we view individual) and generates outputs (decisions) economics as the study of “rational after processing the former. In this allocation of scarce resources” (Simon, 1978, framework, bounded rationality would p.2). therefore refer to “choice that is imperfect in the sense that the output is often not the 3.2. Bounded rationality as a step 'correct' one, but is sensible in that it can be towards building non-ideal theories of understood as an attempt by the agent to do global distributive justice reasonably well. Put differently, the Before examining the effects which procedure used is a reasonable compromise the introduction of a bounded rationality between accuracy of the output and the assumption would have on the distribution difficulties involved in processing” (Lipman, of goods in the two theories previously 1995, p.43). described, we consider it necessary to take a The reason why we argue that taking short meta-theoretical detour in order to into account the constraints mentioned in explain the larger picture in which this the preceding paragraph, in the form of a discussion takes place. This conceptual field bounded rationality assumption, is important is represented by the on-going debate is that its empirical plausibility has repeatedly between ideal theorists and non-ideal been confirmed in experimental situations theorists with respect to the relevance of starting from the pioneering work of taking into account certain types of Tversky and Kahneman (1974), (1979) and constraints in normative theory-building. continuing with many other similar results The distinction between ideal and non-ideal

theory with regard to normative assessments 9 Which is the dimension of bounded of justice is first discussed by Rawls (1971, rationality in which we are interested here.

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p.8) who frames his theory of justice as theory of perfect justice (or a transcendental fairness within the framework of ideal theory) and a theory of local improvement in theory, assuming that the parties will comply justice (or a comparative theory)12 and the in all cases with the principles established in distinction between fact-sensitivity and fact- the original position. In the initial meaning insensivity (Hamlin and Stemplowska, 2012, introduced by Rawls, ideal theory differs pp.3-6). The last distinction, which specifies from non-ideal theory in that the former whether the theory is empirically constrained “attempts to describe those principles for on any level, is the one in which we are the design of institutions and the conduct of primarily interested in this paper. As Farrelly persons that would be appropriate to a (2007) points out, Rawls himself takes into morally and politically ideal order, while account some moderate constraints when non-ideal theory concerns itself with the constructing his original position, such as principles that would be appropriate for pluralism or the human nature as well as these purposes under less perfect others, e.g. moderate scarcity13, but that conditions” (Phillips, 1985, p.551). The main many other constraints, such as unfavorable element of disagreement between the two historical, social or economic conditions, approaches is therefore exclusively indeterminacy, fallibility, human axiological, being reduced to the universal vulnerability, problems of institutional following of moral constraints by design, etc. are not included in the individuals. assumption set of the theory of justice as The current debate focused on the fairness, further arguing that the theory itself subject is however decidedly more complex10 is unrobust when some of these assumptions introducing several other dimensions are altered (Farrelly, 2007, p.847). If we complementary to the full compliance one, adopt the view made explicit by Hamlin and namely the distinction between idealization 11 any falsehoods about them” (Hamlin and and abstraction , the distinction between a Stemplowska, 2012, p.4). 12 A transcendental theory “focuses on identifying perfectly just social arrangements while a comparative theory concentrates on 10 For a basic introduction to the main issues ranking alternative social arrangements” in question see Farrely (2007), Simmons (Hamlin and Stemplowska, 2012, p.6). (2010), Valentini (2012) and Hamlin and Hamlin and Stemplowska underline however Stemplowska(2012). that the transcendental-comparative 11 Idealization is understood as the “making dimension doesn’t in their view perfectly of false assumptions about some significant correspond to the ideal-non-ideal categories. aspect of the problem in hand”, while 13 Although Farrelly specifically targets the abstraction is “understood to consist in explicit introduction of moderate scarcity as ignoring or bracketing off some complexities a constraint arguing that in effect he fails to of a given problem, but without assuming take it into account (2007, pp.848-856). 107

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Stemplowska, that the distinction between action. First of all we agree in general with ideal and non-ideal theory is a fuzzy one and Farrelly’s remark that the bracketing of it should be interpreted on a continuum certain real-life constraints in some theories rather than through a categorical approach of justice15 severely limits or even distorts (2012, p.3), then Rawls’ theory of justice as the results of the theories in their practical fairness is not placed on either extreme, application (Farrelly, 2007, p.859). Secondly, although it is somewhat closer to the fact- we argue that an even stronger argument can insensitive extreme14 and the same can be be brought in support of our enterprise, said of Pogge and Dorsey’s theories namely one which starts from Rawls’ (1999) previously discussed, since they take into own transcendental position and more account certain constraints such as extreme specifically from his claim that a theory of resource scarcity (Dorsey, 2005, p.565) or global justice should be realistically even non-compliance (Pogge, 1994, p.202), utopian16. The argument is constructed as but not others such as the limits of human follows: the fact-sensitive constraint set can nature. broadly be described as consisting of three The introduction of bounded types of categories: 1. elements which are rationality as a constraint in theories of historically derived, e.g. unfavorable global distributive justice is therefore a step circumstances generated by colonization, 2. forward in the attempt to ground the elements which are morally derived, e.g. normative principles derived through their quasi-full compliance or 3. elements which usage in empirical facts and move the are physically derived, e.g. cognitive theories towards a non-ideal perspective. limitations. The problem with non-ideal There are at least two reasons why we theorizing under historical or moral consider it necessary to follow this course of constraints is that there is a possibility that in

future scenarios we may come to respect a 14 On this extreme position we could place, principle derived under constraints which as Farrelly (2007, p.847) does, Cohen’s approach, who argues in favor of complete are no longer valid and would therefore be fact-insensivity in deriving normative principles by stating that “a principle can 15 Farrelly directs his own criticism at liberal reflect or respond to a fact only because it is egalitarianism but it can also be applied on also a response to a principle that is not a principle to global distributive justice response to a fact. To put the same point theories. differently, principles that reflect facts must, 16 Rawls states that a normative theory is in order to reflect facts, reflect principles “realistically utopian” when it extends what that don't reflect fact” (Cohen, 2003, p.214). are ordinarily thought to be limits of On the opposite extreme we could place any practicable political possibility and, in so normative theory which is fully grounded in doing, reconciles us to our political and empirical circumstances. social condition” (Rawls, 1999, p.11).

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sub-optimal. However, since we have 4.1. Distribution beneficiaries in Pogge adopted a transcendental stance we cannot and Dorsey's approaches simply argue that at some point in time we As we mentioned in the introductory part of will re-evaluate the social arrangements this paper, our objective is to discuss global made, because we are ab initio in the position distributive justice theories from the to seek perfectly just social arrangements, perspective of a specific component, namely which are atemporal. But because bounded the pattern of distribution prescribed by the rationality is a physical characteristic of theories. All distribution mechanisms individuals we cannot presume that there is a broadly adopt the following structure: foreseeable future populated by individuals citizens from category with similar physical characteristics, where X{ x1 , x 2 , x 3 ,..., xin ,... x }are taxed by the constraint might be altered, therefore, institution (or agency) I and the goods the risk of principles becoming sub-optimal extracted are being redistributed to citizens

at some point does not exist. The objection 17 from category Y{ y1 , y 2 , y 3 ,..., yin ,... y } , which could be therefore brought against the on the basis of a set of conditions first type of constraints, i.e. that they are not C{ c1 , c 2 , c 3 ,..., cin ,... c }. The main utopian in the Rawlsian sense (Rawls, 1999, objective of a significant part of distributive p.14) cannot be brought against the justice theories18 is therefore to provide bounded rationality constraint. Further, as arguments justifying why a certain the assumption of bounded rationality is a 19 part of human nature, it is required by a condition from set C must be the theory which seeks to be realistic even under determinant factor in the redistribution of Rawls’ own view (see Rawls, 1999, p.13). goods from X-type citizens to Y-type Thus, we conclude the argument by stating citizens, while also specifying certain other that the introduction of bounded rationality aspects such as the trigger and stopping in theories of global justice is not only mechanisms for the redistribution (if such requested by meta-theoretical conceptions in mechanisms exist), the type of goods to be line with non-ideal theory, but that it is also redistributed, the level of goods which are to required in the original transcendental be redistributed, etc.

framework of a Rawlsian realistic utopia. 17 In an informal language, we can state that the X-type citizens are net contributors to 4. Distributions under the assumption of the redistribution while Y-type citizens are bounded rationality net beneficiaries. 18 Including the approaches of Pogge and Dorsey. 19 Or a subset of conditions. 109

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By looking at the two global from an economic standpoint, worse-off. distributive justice theories examined here Thus, it can be said that through this lens we can fix them in a yi x i,(),  y i Y P x i  X P . common framework which we will use in In Dorsey’s maxificing welfarism, the the next part in order to more easily explain distribution condition, which we will term their shortcomings. The first of these cD , radically differs from cP . Dorsey argues theories, namely Pogge’s GRD proposal, that “the main concern of the government states that the rules governing the should be to alleviate poverty for the distributions should be conceived in such a greatest number possible” (2005, p.565) and way so that “the entire GRT scheme has the that “the maximal fulfillment of basic needs, maximum possible positive impact on the so that persons can live lives of at least world's poorest persons -the poorest minimal decency and avoid unnecessary quintile, say- in the long run” (Pogge, 1994, morbidity and mortality, is the essential p.203). We can notice that this can basically priority for just institutions in poor be understood as the difference principle, i.e. countries” (2005, p.566), thus cD states that “social and economic inequalities are to be a distribution is justified when it brings the arranged so that they are to the greatest maximum number of citizens from Y to a expected benefit of the least advantaged” D (Rawls, 1971, p.72), applied on a global scale level  in which their basic needs are 20 but focusing solely on economic issues . In fulfilled, with YD representing the set of Pogge’s view, set C consists of a single citizens which are below level  . Formally, c condition, let us call it P , which is that a yi,( ) y i Y P ,  0 . distribution is justified when it is to the We can immediately observe two

greatest advantage of citizens fromYP , major differences between the approaches: 1. c is focused on maximizing the number where YP is the set of citizens which are, D of Y-type citizens who will benefit from the 20 Freeman (2007) argues that in fact a global c distributive principle cannot be the Rawlsian distribution, while P is focused on difference principle since the latter is a maximizing the benefits of Y-type citizens political principle which is predicated on the existence of both a system of property and a and 2. cD incorporates a stopping legal system which are common for the agents to which it applies. In the absence of mechanism, i.e. it allows for the possibility such systems, which is characteristic to the global environment as a whole, Freeman argues that any principle of distributive justice cannot be anything more than a simple reallocation model (2007, p.444).

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21 that set YD is empty , while in Pogge’s case In the subsequent section we seek to

22 explore the implications of relaxing these set YP can never be empty . Thus, Dorsey’s strong assumptions, which are unrealistic theory is applicable only if certain pre- because they demand a maximal cognitive requisites are met. We can also observe capacity uncharacteristic for real-life however, that the approaches are identical individuals, by framing the theories in a from the following point of view: both boundedly rational framework and therefore imply23 that the distributing agency I 24 taking a step in the direction of weakening precisely identifies all Y-type citizens, the ideal perspective of global distributive meaning both that they do not mistakenly justice theories. add X-typecitizens in set Y and that and

Y-type they do not omit any citizens from 4.2. The role of bounded rationality in set Y . Pogge and Dorsey’s distributive patterns In order to observe if introducing the assumption of bounded rationality is 21 If there are no individuals who fall under the threshold of basic need fulfillment. relevant to the prescriptions of Pogge and 22 In the extreme case in which each Dorsey’s theories we will only discuss a individual holds exactly the same amount of resources X and Y would be identical and single form of manifestation of bounded would contain the entire set of individuals. rationality, namely the capacity of individuals 23 We maintain that the assumptions are implied since they are not explicitly who are responsible for the decision-making discussed in either case, but since an process in the distributing agency I to exclusion of facts relating to the capacity of agents to implement normative principles is precisely and exhaustively identify the agents customary in political philosophy we take it in the group who will benefit from the that this is also the case here. If our reading of Pogge and Dorsey’s theories is correct distribution (the Y-type citizens). To use and they do indeed imply that individuals in Lipman’s (1995) terminology, we will distributive agencies are comprehensively rational, we will show that in some cases the consider that: 1. the inputs are imperfectly introduction of a bounded rationality can absorbed by the distributing agency, i.e. the lead to problematic distributions under their principles. If our reading is incorrect and information gathered on the economic they implicitly argue that the theory position of citizens is not perfectly accurate generates the same results in a boundedly rational world as much as in a and 2. the process through which individuals comprehensively rational one, we will show in the agency analyze the inputs is that this view would be erroneous. 24 In some cases the institution which is cognitively constrained, i.e. the agents responsible for taxation may not be evaluating the economic positions of citizens responsible for the redistribution as well but we ignore this aspect here as it does not are susceptible to make mistakes in judging influence the general result. 111

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the individuals which require a distribution Y-type citizens, which will peak at the 25 of goods or the level of goods required . positions of Y-type citizens and will Thus, we are interested to analyze what the monotonously decrease as the position of outputs of the distributive agency would be the citizens is further from the position of if they conformed to the normative theories Y-type citizens, in order to offer a plausible advanced by Pogge and Dorsey and if they depiction of reality. were the result of imperfections in the input For Pogge’s GRD approach we absorption and the decision-making process. define a function of the following type:

In order to operationalize the outputs we 2 f:[, w ] [0,  ],() f x  ax  bx  c , will argue that the distributing institution with w representing the worst-off economic attaches probabilities to the identification of position26. The probability that I identifies Y-type citizens, the deterministic case position x as the worst-off individual is (where the institution identifies them with a i then calculated as a percentage through probability of 100%) used by Pogge and fx() Dorsey being reducible to a special case of i px(i ) 100 . But as previously fx()  n the probabilistic identification. In order to n1 account for a large number of cases we will stated, in order to ground the theory in use mathematical functions to determine the reality as much as possible, we do not probability of a correct identification of consider that I assigns equal probabilities for every agent to be in the worst-off position, 25 Various reasons can be brought in support of both assumptions. For instance, input the input absorption and decision-making imperfection can be caused by employment process being imperfect but still useful for on the black market, tax evasion, gaining undeclared income, variability in agricultural gaining some knowledge regarding genuine production used for subsistence etc., all economic conditions. Thus, we consider that these forms of unmonitored economic activity preventing the state and the any function fx(), defined as above, could distributive institution from accurately theoretically be used for evaluating the assessing the economic status of citizens. Imperfections in the decision-making probability that a individual with an xi process can also have multiple causes, such as low incentives to perform adequately in amount of goods is in the worst-off position bureaucracies (for the basic idea behind this if it satisfies the following condition: 1. it assertion see Mueller, 2003, pp.359-385), incapacity to correctly determine the incorporation of citizens into the category of 26 w can also represent a quintile not a single net beneficiaries or net contributors to the position, as in Pogge’s formulation (1994, redistribution in certain cases, incapacity to p.203). For reasons of simplicity we will correctly aggregate the individual cases into consider that w is a single point instead of an groups targeted for obtaining benefits after interval but the results are not affected by the redistribution, etc. this interpretation.

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b px()i with the above mentioned formula. peaks at w (in mathematical terms  w) 2a The functions are built in such a way as to and 2. it decreases monotonically on the always assign a higher probability for entire domain (in mathematical terms identification as the worst-off position to fx( ) 0 ). In Figure 1 we can see some of   individuals who are actually in the proximity the shapes which the functions, as restricted of the position and the probability decreases by the conditions above, can take. as the actual level of goods possessed by Let us try to explain the reasoning in individuals increases. Further, we an informal language. By introducing the intentionally allow for an entire class of bounded rationality assumption we consider functions to be eligible for describing the that the outputs of the agency which handles effects of bounded rationality as we cannot the distribution is susceptible to being identify a single function that could be wrong, in the sense that it is possible for the universally applied precisely because the Figure 1. Probabilistic functions for capacity to collect information and the identifying worst-off positions under a internal decision-making process varies on a bounded rationality assumption case-by-case basis, from state to state and

f(x) from agency to agency. Therefore, if we follow Pogge’s example of a society which (w, f(w)) would distribute one third of their GRD through the government and two thirds through other channels such as international NGOs or UN agencies (Pogge, 1994, p.202), we could notice that the differences in their monitoring capacity could for instance lead to a superior probability to accurately O x identify worse-off positions in the case of Source: Authors one of the agencies, either the government agency to distribute goods to some positions due to their detailed access to economic which are not in fact worse-off. The purpose records or perhaps, on the contrary, UN of these functions are then to attribute agencies or NGOs due to their superiorly probabilities of obtaining accurate results for qualified personnel. In mathematical terms, each choice made by I regarding the the most efficient agency would be the one distributive patterns, which are afterwards with the highest function slope and the one expressed as a percentage by calculating which minimizes the result of xwi  when

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conditions imposed above. To compute the fx(i ) 0. A final and essential aspect is that the choice of a specific function in the probabilities with which I would identify defined set is irrelevant, as the results each position as being the worst-off we have x fA( ) 50 obtained will hold if at least one position i pA( ) 100  100  66.(6 f() A f () B f () C 502541  exists that will take values from the and codomain (and by assuming that agents are fB( ) 25 pB( ) 100  100  33.(3)% boundedly rational this should happen in f( A ) f ( B ) 50 25 every case), although depending on the . Therefore, in this situation, the distributive capacity of the distributive institution to agency would be susceptible to make a obtain accurate identifications, the mistake in identifying the worst-off positions importance of the results can vary. in one case out of every three. The Let us consider the following probability that they would make the correct example which will be useful both for a choice still remains higher than the average clearer understanding of the way in which however, but what happens when we bounded rationality would work in the introduce additional agents? Let us consider theory and for an understanding of the that two more actors are introduced to the negative effects which it would bring. citizen set: C, which in reality has 8 units of Suppose we have a society comprised of the good and D which has 15 units. First let only two individuals: A and B. Let us further us notice that the probability for D to be consider that A is in the worst-off economic chosen as the worst-off position is 0 since position as he only has an amount of 5 units fx() would not take values in the of goods while B has 10 units. Let us also codomain. C however would be chosen as consider that the identification of the worst- the worst-off position with a probability of off position can be made by following the fC( ) 41 pC( ) 100  100  35.34% 2 f() A f () B f () C 502541  function: f( x ) x  10 x  25, with , while b 10 fw:[ , ]  [0,  ]. Since 5 fA( ) 50 22a  pA( ) 100  100  43.1% f() A f () B f () C 502541  and f( x ) 2 x  10  0,(  ) x [5,  ) we . We can notice therefore that: 1. as the set notice that the peak of the function is at the of citizens increases the worst-off positions worst-off position and the function become harder to detect and 2. as more monotonically decreases on the entire citizens are placed in the vicinity of the domain, therefore fx() belongs to the class worst-off position, the true worst-off of functions which satisfy the two positions become harder to detect.

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The practical consequences of these quintiles, which may have severe economic two conclusions are significant. First of all, disadvantages as well, but in an extremely they state that in large societies, as societies poor society and in a boundedly rational which are in need of a global distribution of world it is, as we previously show, very likely goods usually are, the genuinely worst-off that in many cases the worst-off positions positions are very difficult to identify27 and will be incorrectly identified and because that concentrating efforts on finding these there is no distributive mechanism for positions in order to apply Pogge’s principle second or third worst-off quintiles, the may be an enterprise which would not be poorest members of society will actually be worthy of the costs. Secondly, the fact that bereft of any distributed goods. worst-off positions are more difficult to Dorsey’s approach requires different indentify in larger societies means that high conditions than that of Pogge, since Dorsey demographic growth rates in poor societies does not care about worst-off positions, but will make the identification of individuals in about those positions which are sufficiently worse-off positions exponentially harder to close to the level of minimum basic needs so identify. Third, the conclusions also imply that a distribution of goods could bring that when many citizens in a society are in them above the respective level. Thus, let us fact in positions relatively close to those of define a function

2 the worst-off quintile, it is much more f:[0, ] [0,  ], f ( x )  ax  bx  c . difficult to assess which group should be the Similarly to the previous case, any function beneficiary of the distribution. To put it fx()defined in such a way must also satisfy simply, in extremely poor societies it is very two other conditions in order to generate difficult to find out which groups are the realistic probabilities: 1. 1. it peaks at  (in “poorest” and organize the distributions so b mathematical terms   ), where  is as to exclusively target their problems. By 2a adopting the GRD approach with the the purpose of maximizing the benefits of the worst-off Pogge therefore ignores second level of goods required for the minimal worst-off positions, or second worst-off satisfaction of basic needs and 2. it increases monotonically on [0, ) and it decreases 27 The worst-off position should not be monotonically on [,) . Let us also understood in a narrow way as the position   of a single individual, which would of course fx()i be quasi-impossible to identify (as the final consider that px(i ) 100 is the fx() probability would tend towards 0 even when  n n1 the slope of the function would be very high). probability that the citizen which holds an 115

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2 xi amount of goods will be a part of the f( x ) x  10 x , with group benefiting from the distribution. All b 10 f :[0, ]  [0,  ]. Since 5 the observations made when describing the 22a  role which bounded rationality would play in and Pogge’s prescribed distributive pattern, i.e. f( x ) ( 2 x  10)   2 0 f ( x ) is concave , fx()satisfies the two conditions imposed that the purpose of the function is to faithfully depict real conditions, that for the acceptability of the function. bounded rationality allows for an entire class Figure 2. Probabilistic functions for of functions to be used in evaluating the identifying positions closest to a probability that a certain citizens is in minimum level of basic needs fulfillment proximity to the level of minimum goods, under a bounded rationality assumption

depending on the capacity of the distributive f(x) institution to accurately identify the ( ,f ( )) respective positions and that the choice of  any function which does not perfectly map every citizen to the exact level of goods held by them can potentially led to problematic consequences for the distributive patterns. We will also consider an example in order to illustrate this last claim. Let us O x assume that this time we have a society Source: Authors composed of three citizens: A, B and C, Thus we can observe that the possessing 4, 3 and 2 units of goods probabilities attached to the three citizens respectively. Let us further consider that the are: level of fA( ) 24 minimal decency (i.e. the level where citizens pA( ) 100  100  39.34% f() A f () B f () C 242116 can fulfill their basic needs) is   5 and   , that there are only 3 available goods for fB( ) 21 distribution28. Finally, we will consider that pB( ) 100  100  34.42% f() A f () B f () C 242116  and 28 Remember that Dorsey’s approach targets radical poverty specifically, focusing on prioritizing the welfare of some citizens (the citizens who are more likely to achieve a minimum level of subsistence) over others in prohibit all the citizens to be brought over conditions of scarce resources which the minimum level.

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fC( ) 16 world, where C would enter the distribution pC( ) 100  100  26.22% scheme with 1 in 4 chances, one of the f() A f () B f () C 242116  following 4 scenarios could then be possible: . 1. A gets 2 units, C gets 1 unit30. C does not Keep in mind that in this case, the get sufficient resources to be raised to  probabilities also refer to proximity between and B also fails to be raised to the level. the citizens and the level of basic needs. Only A is alleviated from poverty, 2. A gets Since Dorsey’s distributive principle argues 1 unit, C gets 2 units. The same situation that we should seek to maximize the number occurs, only A has reached  , 3. B gets 2 of citizens which are alleviated from extreme units, C gets 1 unit. Only B reaches  and poverty it is natural to consider that the 4. B gets 1 unit, C gets 2 units. B gets 4 units closer a citizen is to the level of fulfillment in total (3+1; he is below  ), C gets 4 units of basic needs, the higher is his chance of in total (2+2; he is below  ), A gets 4 units being part of the redistributive scheme. In in total (4+0; he is below  ). Although the this scenario, C only has about 1 chance in 4 last case is the most striking one as by to enter the redistribution scheme but let us following Dorsey’s principle in a boundedly examine what would happen if that would rational environment we would arrive at a indeed be the case. If C gets a part of the 3 situation in which none of the 3 citizens are units which will be distributed, it able to reach the level of basic need automatically means that of the other two fulfillment, all cases in which the distributive agents will not become a part of the agency does not perfectly identify both the distribution mechanism29 since there is a agents which have a chance to be raised scarce amount of resources to be distributed. above a certain level of decency and the level In a perfectly rational world, Dorsey’s of goods required to reach it generates a principle would prescribe that A should get sub-optimal result. Since the number of 1 unit and B should get 2 units, thus both A alternative cases increases exponentially as and B would be lifted to the level of fulfilling the number of citizens increases, we can basic needs. But in a boundedly rational notice that it would basically be impossible to precisely identify all the positions of the 29 For the sake of simplicity we will assume that even in a boundedly rational world the distributing institution has the capacity to compile reasonably accurate aggregate data 30 Of course it is also possible that within the about citizen incomes but that it does not distribution mechanism I will incorrectly have the capacity to pinpoint the economic assess the positions of A and B and status of each individual and it cannot distribute 2 units to A and only 1 to B which precisely incorporate every individual into would also be sub-optimal from Dorsey’s the categories. point of view. 117

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actors and the level of goods required by The results of the paper can be them to be alleviated from poverty. summarized as follows: the assumption that On a practical note, we consider that individuals in organizations which allocate introducing a bounded rationality goods on the basis of principles established assumption in assessing the applicability of in theories of global distributive justice are Dorsey’s maxificing welfarism has a much boundedly rational generates distorted bigger impact than in Pogge’s GRD distributive patterns. Even if we interpret approach because of the fact that on top of bounded rationality only as an incapacity to the problems outlined when discussing the obtain full information on the economic latter theory, which also hold in this case, situations of citizens and as a cognitive Dorsey asks that the distributive agencies limitation in the decision-making process, arrive at a much more demanding level of there is a significant chance that the theories knowledge of each individual in the society will miss the groups which they target as as well as the difference between the current beneficiaries for the distribution. In order to economic position of every citizens and the observe the effects of the bounded level required for the fulfillment of basic rationality assumption we analyzed Pogge’s needs. Further, since Dorsey’s objective is to GRD theory, as it follows distributive maximize the number of citizens which principles common to most cosmopolitan reach the specified levels of decency, the theories and Dorsey’s maxificing welfarism, slightest imperfection in the absorption of as it is predicated on a distinctly inputs or the decision-making process would consequentialist perspective. We defined a yield sub-optimal results, either by allocating probabilistic function which mapped the supplementary resources to citizens who are level of available goods for individuals (or already above the level of decency, by groups of individuals) to the probability that wasting resources on citizens who cannot the distributive agency will correctly identify reach the level at all or can reach it only them as members of the group which is a through a higher distribution of resources net beneficiary of the distribution or the than optimal or by not allocating resources group which is a net contributor. We found to citizens who are in the proximity of the that the inaccuracies appearing in the level of decency but have yet failed to reach identification of citizens with their true it. group (on the basis of the theories) were enhanced by three factors: 1. a gently sloping 5. Conclusions and further discussions probabilistic function (caused directly by how limited the informational or cognitive

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capacity of the agency is)31, 2. a high number concentrate exclusively on a certain set of of citizens, especially if the positions sought citizens and ignore all others. In nuce, Pogge for beneficiary status represented a small maintains that this set should be composed groups32 and 3. a high accumulation of of the poorest individuals in a society, and citizens near the worst-off position in that individuals who are in other positions Pogge’s case or under the level where they (second worst, third worst, etc.) should not can fulfill their basic needs. The last result is receive anything. Dorsey maintains that this the most important, because it suggests that set should be composed of individuals who in cases of extreme poverty, which are have a significant chance to achieve a paradigmatic cases in which both theories minimum fulfillment of basic needs and that must apply33 the probability that the individuals who have already achieved this distributive allocations would miss their minimum or are so poor that they cannot targets, as specified by the principles is hope to achieve it should receive nothing. If considerably high. Further, as we show at we consider that the agencies which the end of section 4.2. Dorsey’s theory distribute goods have the complete capacity appears especially problematic as the to identify individuals in each position the slightest amount of noise in the process of categorical distribution is unproblematic. But allocating the distribution will generate a if we consider that distributive agencies see sub-optimal distribution and in some cases these sets as diffuse and that they can make can even subvert the theory completely, by mistakes in allocating resources then we prescribing a pattern in which not even one should wonder if we should not forego the citizen is lifted to a level where they can widely shared view that principles of justice fulfill their basic needs. must distribute goods targeted to only The first discussion which would certain groups and perhaps adopt a certain ensue is therefore the manner in which the type of proportional distributive principle? The allocation mechanisms should be principle could be constructed so as to give constructed. Pogge and Dorsey both share more weight to some individuals than the view34 that the distribution should others, but it would not abandon other groups altogether, who may be in an only

31 This is an assumption not a result but it is slightly more favorable situation in Pogge’s also important. theory, or who may be considered too poor 32 Such as Dorsey’s theory would imply. 33 And Dorsey targets specifically these to be eligible for an allocation in Dorsey’s cases. theory. Although the spatial constraints of 34 Which is a commonplace among philosophers dealing with distributive the paper prevent us to further elaborate on justice. 119

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this issue, a preliminary assessment entitles analyzing global distributive justice within a us to argue that at least for Dorsey’s idea of full framework of organizational theory, not poverty alleviation for the greatest number, a just under one assumption alteration as in proportional allocation would make the this paper. This type of analysis, whereby we potential emergence of perverted results replace a single assumption which such as 0 poverty alleviation (which is valid characterizes a normative theory is in our for Dorsey’s principle under a bounded view extremely important on its own rationality assumption) almost impossible. however, as in many cases, as is the present Another important discussion would one, it shows that the principles prescribed regard the agency which should be by the theory are heavily reliant on responsible for the distribution, an issue unobservable elements which form its which has already been thoroughly discussed background36. in the literature on distributive justice35 and To conclude, we consider that in this was briefly alluded to in section 4.2. Taking paper we have shown that by replacing the into account the fact that the organization comprehensive rationality framework with a responsible for the allocation of resources boundedly rational one in what concerns the can distort the prescribed pattern, would it ability of the agency which handles resource be better if the distribution was conducted allocation in global distributive justice by states toward their own citizens, since theories we obtain results which can they have a better capacity to gather inputs considerably subvert the original intention of on the economic conditions of their citizens, the principles. The assertion lacks generality, or by international organizations due to their in the sense that it does not say anything superior expertise in the allocation process? about every conceivable global distributive Although we do not directly approach the justice theory, but for at least two of them, issue in the current paper, from this point of i.e. Pogge’s GRD theory and Dorsey’s view the framing of debates in a boundedly maxificing welfarism, which we consider rational assumption could provide fresh representative since the former belongs to support in favor of one of the arguments. 36 For another example of such an analysis Some other potential research see Volacu (2012), where the author replaces directions which would continue the work the maximization assumption in Rawls’ (1971) original position with a satisficient began in the paper could extend the debate one and argues that in an environment towards the ideal-type of non-ideal theory by defined as such the agents would not choose the original difference principle but either a constrained difference principle or a 35 See inter alia, Beitz (1979), Tan (2004), constrained version of Rae’s (1975) general Pogge (2002), Held (2003), Cabrera (2004). advantage principle.

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the mainstream cosmopolitan strand of Camerer, C. (1998), “Bounded Rationality in global justice and the latter is a perfect Individual Decision-Making”, Social example of a consequentialist-derived Science Working Paper 1029, California interpretation of global justice, we believe Institute of Technology. that we have managed to prove that the Cohen, G.A. (2003), “Facts and Principles”, prescribed distributive patterns are severely Philosophy & Public Affairs, 31 (3), problematic. Even if we have not developed pp.211-245. a full account of bounded rationality as Conlisnk, J. (1996), “Why Bounded applied to the full specter of global Rationality?”, Journal of Economic distributive justice theories, we trust that, at Literature, 34, pp.669-700. the minimum, we were able to show that Dorsey, D. (2005), “Global Justice and the these types of theories can be inextricably Limits of Human Rights”, Philosophical dependent on their assumptions and that Quarterly, 55 (221), pp.562-581. there is a need to ground these assumptions Dworkin, R. (2000), Sovereign Virtue, in genuine empirical circumstances, thereby Cambridge, Harvard University Press, taking one step further in the direction of 2000. non-idealizing theories of justice by making Farrelly, C. (2007), “Justice in Ideal Theory: them more sensible to facts. A Refutation”, Political Studies, 55, pp.844-864. Bibliographical references: Freeman, S. (2007), Rawls, Routledge,

London. Aumann, R. (1997), „Rationality and Hamlin, A., Stemplowska, Z. (2012), Bounded Rationality“, Games and “Theory, Ideal Theory and the Theory Economic Behavior, 21, pp.2-14. of Ideals”, working paper, available Barry, B. (1999), Statism and Nationalism. A online at http://www.cpsa- Cosmopolitan Critique, New York acsp.ca/papers- University Press, New York. 2010/Hamlin%20and%20Stemplowsk Beitz, C., (1979), Political Theory and a.pdf. International Relations. Princeton Held, D., (2003), Cosmopolitanism: A Defence, University Press, Princeton. Polity Press, Cambridge. Beitz, C., (2000), “Rawls’s Law of Peoples”, Jones, B., (1999), “Bounded Rationality”, Ethics, 110 (4), pp. 669-696. Annual Reviews of Political Science, 2, Cabrera, L. (2004), Political Theory of Global pp.297-321. Justice: A Cosmopolitan Case for the World State, Routledge, London.

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Lipman, B. (1995), „Information Processing Rawls, J. (1993), “The Law of the Peoples”, and Bounded Rationality: A Survey”, Critical Inquiry, 20 (1), pp.36-68. Canadian Journal of Economics, 28 (1), Rawls, J. (1999), The Law of the Peoples, pp.42-67. Harvard University Press, Cambridge. Lovell, M. (1986), “Tests of the Rational Reidy, D. (2004), “Rawls on International Expectations Hypothesis”, American Justice: A Defense”, Political Theory, 32 Economic Review, 76 (1), pp.110-124. (3), pp.291-319. Mollendorf, D. (2002), Cosmopolitan Justice, Selten, R. (1998), “Features of Westview Press, New York. experimentally observed bounded Mueller, D.C. (2003), Public Choice (Vol. 3), rationality”, European Economic Review, Cambridge University Press, New 42, pp. 413-436. York. Selten, R. (1999), „What is Bounded Nagel, T. (2005), “The Problem of Global Rationality?”, SFB Discussion Paper Justice”, Philosophy and Public Affairs , B-454, online at: 33 (2), pp. 113-147. http://www.wiwi.uni- Phillips, M. (1985), “Reflections on the bonn.de/sfb303/papers/1999/b/bon Transition from Ideal to Non-Ideal nsfb454.pdf. Theory”, Noûs, 19 (4), pp.551-570. Sen, A., (1997), “Maximization and the Act Pogge, T. (1994), “An Egalitarian Law of the of Choice”, Econometrica, 65 (4), Peoples”, Philosophy & Public Affairs, pp.745-779. 23 (3), pp.195-224. Simmons, A. (2010), “Ideal and Nonideal Pogge, T. (2001), “Priorities of Global Theory”, Philosophy & Public Affairs, Justice”, Metaphilosophy, 32, pp. 6-24. 38(1), pp.5-36. Pogge T. (2002), World Poverty and Human Simon, H., (1955), “A Behavioral Model of Rights: Cosmopolitan Responsibilities and Rational Choice”, Quarterly Journal of Reforms, Polity Press, London. Economics, 69 (1), pp.99-118. Rae, D., (1975), “Maximin Justice and an Simon, H. (1976), Administrative Behavior, Alternative Principle of General Free Press, New York. Advantage”, American Political Science Simon, H. (1978), “Rationality as Process Review, 69 (2), pp.630-647. and as Product of Thought”, American Rawls, J., (1971[1999]), A Theory of Justice Economic Review, 68 (2), pp.1-16. (revised edition), Belknap Press, Tan, K.-C. (2004), Cosmopolitanism, Cambridge, Massachusetts. Nationalism and Patriotism, Cambridge University Press, Cambridge.

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Tversky, A., Kahneman, D. (1974), “Judgment under Uncertainty: Heuristics and Biases”, Science, 185 (4157), pp.1124-1131. Tversky, A., Kahneman, D. (1979), „Prospect Theory: An Analysis of Decision Under Risk”, Econometrica, 47 (2), pp.263-292. Valentini, L. (2012), “Ideal vs. Non-ideal Theory: A Conceptual Map”, Philosophy Compass, 7 (9), pp. 654–664. Volacu, A. (2012), “On the Optimal Choice Criterion in a Satisficiency-Based Original Position”, presented at the Center for Research in Applied Ethics, Faculty of Philosophy (University of Bucharest), 19 October 2012.

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Criminalizing Rape Within Marriage: Recasting Indian Rape Law MEGHA, University of Delhi, India

Abstract

he paper is an attempt to bring marital rape under the purview of legal discourse in India with substantive equality approach to problematize the existing defined structure of Indian Rape Law. This paper takes up the challenge to create a legal language on the issue of rape within marriage T which is till now absent from the legal and social scenario. The equal treatment of women before and under the law within the context of marital rape is critical to ensuring the recognition of women as full citizens, and ensuring their freedom from violence. This paper examines the following questions: how marital rape contributes to and results from women‘s inequality; how the discriminatory roots of the historical- cultural rationales contributes to the exemption of marital rape from the Indian legal system; how the issue of marital rape has been debated in personal-political scenario from the feminist viewpoint; how equality jurisprudence can support the case for the legal treatment of marital rape claims. This paper questions the socio-legal passivity about the suppression of married women; cultivate the knowledge that helps women to generate their own thinking and to apply that in creating the new subjects, to make the women able to express their disagreements about the consent and to make them aware of their active sexuality to provide them bodily integrity. The paper is, thus, an attempt to emphasise the need to transform the prevailing masochistic heterosexual socio- legal matrix. The paper underlines the need to bring the issue of marital rape in the political sphere by bringing this to the purview of Indian law in both formal and substantive manner.

Keywords: marital rape, masochistic heterosexuality, personal-political dichotomy, socio-legal matrix, sexual passivity, substantive equality

Introduction

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ender inequalities are embedded The gendered practices of state and within the state structures and law have been particularly criticized by practices and, through the same radical feminists in the domain of sexual G dynamic process, gender relations violence. This is an area where the law and are also constituted through the state. The state still work on the public / private divide state is strategic in the sense it acts as the and by blindly adhering to the social norms, ‘main organizer’ of gendered power through they tend to reinforce such cultural myths its legislation and policies, and the ways in such as women’s passive sexuality and men’s which it is implicated in the construction of active sexuality, coital imperative, cultural the public/private distinction. This sadism and other phallocentric norms and demarcation between public and private life tend to view through the lenses of such within a society is an inherently political norms. Geetanjali Gangoli argues that while process, which reflects and reinforces power purporting to provide justice to raped relations of gender and which legitimates women, the legal system tends to reinforce direct and indirect violence against women. patterns of heterosexual dominance in which This public / private distinction women are seen as inferior, sexually passive established by the state was first interrogated and within marriage, the sexual property of by radical feminists through the slogan their husbands. Feminists argue that the ‘personal is political’ where women are state constructs the meanings of sexual brought from the confines of ‘private’ realm violence or even domestic violence done to to the ‘public’ sphere. The gendering of women. Many women do not even think sexuality within the private sphere drew that they have been sexually abused, even attention to the way the state constructs though so much force may have been used ‘women’ in terms of their distinction from because they were not raped in a way that men by formulating law and policies which can be legally proved. Though women’s apply only to them, and also by movements have forced the state to differentiating among them. For instance intervene in the domestic sphere in the hope women have been treated ‘differently’ in law that it could abolish all kinds of violence and and government policies categorized as oppression women face but in reality state ‘good’ and ‘bad’(prostitutes and housewives), has often used this power to manipulate, virgin and non-virgin, married and formulate and categorize women’s identity, unmarried, normal and deviant ( the deviant in different ways. constituting the destitute and insane) and so One such issue that has been on. The feminists argue that construction of manipulatively excluded by the state and law “Women” in these ways — both as a unitary is the issue of marital rape in India which is category and as a differentiated one — is not only the product of inequality but primarily the work of the state. And that is reinforces the grounds for inequality too. why violence done to women in the private Marital Rape is not a crime in India. A sphere cannot be left untouched by the state woman has no legal recourse if she is raped and in order to make women free from all by her husband. Though this issue remains a kinds of subordinations state needed to taboo among women, it does not mean that come up with some affirmative laws. With it doesn’t exist or that it is right. On the such provisions state no longer remains contrary, marital rape is very common in passive in the private domain. So, to end the India but remains hidden behind the iron violence in private sphere, state took many curtains of the “sacrosanct” institution of progressive steps like laws against dowry, marriage, which coupled with legal ignorance domestic violence act, criminalizing rape, on this issue, reinforces the denial of and measures against girls and women women’s sexual agency and bodily integrity. trafficking and so on. At the same time, It amounts to women losing their self however, such interventions still take place respect and identity after marriage as the law in gendered ways. 125

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provides no relief to women in case of ‘political’ mutually complement each other marital rape. and, that is why, the paper emphasizes the need to understand the issue of rape within Rape is usually defined in terms of marriage through the engagements between what has done to the victim rather than socio-political and legal understandings and establishing a legal relationship between the emphasizes the need to criminalize rape perpetrator and the victim. The legal within marriage to provide women definition of rape as per the Section 375 of substantive equality and justice. the Indian Penal Code (IPC), states that a Defining Marital Rape man commits rape when he engages in intercourse with a woman, ‘not his wife’, by There are very few historical accounts force or threat of force, against her will or available on the issue of a wife’s rape. Susan without her consent. Marital rape is not Brownmiller addressed it, probably for the recognized under this definition. This first time, in her book, Against Our Will. implies that when a woman marries, as a According to Brownmiller, “The exemption wife she loses her right to consent to sexual from rape prosecutions granted to husbands relations and the husband on the other hand who force their wife into acts of sexual acquires an unconditional, unqualified right union by physical means is as ancient as the of sexual access to her. From the standpoint original definition of criminal rape, which of basic human rights, the husband should was synonymous with that quaint phrase of not be entitled to have intercourse with his Biblical origin, ‘unlawful carnal knowledge’ wife without her consent and irrespective of outside the marriage contract, which meant her state of health or her valid objections that it was, by definition, ‘lawful’ so long as and a wife must have a right to retract her it was obtained within such a contract. Thus, consent to cohabitation or intercourse. In as the law evolved, the idea that a husband other words, excluding marital rape from the could be prosecuted for raping his wife was purview of law amounts to an infringement unthinkable.1 E.H. Russell argues that wife’s of a woman’s fundamental human rights, rape should not be seen only as the equality and justice. extension of violence, but rape in marriage should rather be seen as being at one end of The paper throws light on the a marital sex continuum, with voluntary, dualistic nature of the state towards the issue mutually desired and satisfying sex. At the of rape within marriage. For instance, if other end rape like behavior such as coercive domestic violence can become a part of sex (without physical force or threat of ‘public’ issue despite the fact that it is about physical force), unwanted sex, sex in which ‘private’ domain, then why rape within the wife is totally passive servicing her marriage is still conceived as the part of the husband.2 ‘private’ realm and is still excluded from the legal purview and even social debates. The In some countries, marital rape is a paper underlines the need to bring this issue cognizable offence. In the UN conference in in the political sphere so that women can Beijing in 1995, almost 150 countries attain complete bodily integrity even in the including America, Canada, and Vietnam private realm. This paper not only abides by admitted marital rape as legal offence. In the old feminists slogan of ‘personal is these countries either the legislature has political’ but also points to other side of this criminalized marital rape or the judiciary has picture that ‘political is personal’ because without criminalizing rape within marriage in ‘political’ domain, which includes the state, 1 Susan, Brownmiller, Against Our Will: law and society, a radical change cannot be Men, Women and Rape, New York, expected at home, that is the ‘personal’ Routledge, 1975, p. 380. sphere. In this sense both ‘personal’ and 2 D.E.H. Russell, Rape in Marriage, Indiana University Press, 1982, p. 377.

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played an active role in recognizing it as an humiliating and degrading manner offence. In California, USA, for example they resort to sexual violence. While husbands can only be charged with felony or misdemeanor crime of “spousal rape” if they beating the wife a husband may strip use force of threat and if rape is reported his wife and force her to disrobe and within ninety days.3 In Nepal, the Supreme Court has declared that husbands who force then have intercourse. Sometime the their wives to have sex can now be charged hitting and the punching continue with rape. The May 2002 landmark ruling was a result of a July 2001 petition filed by throughout the sex and that itself the Forum for Women, Law and becomes a violent experience. Development (FWLD), a women's rights organization in Nepal. The court’s judgment 2. Force-Only Rape: In this, husband declared that marital sex without a wife's uses only as much force as necessary consent constitutes rape. Drawing upon the religious texts, which do not condone men to coerce their wives into sex, who rape their wives, the court stated that though it is also humiliating and Hinduism stresses conjugal harmony based on mutual understanding between husband upsetting, they use less violence and and wife. more often, these involve a Types of Marital Rape specifically sexual grievance. Three kinds of marital rape may be 3. Obsessive Rape: In this, husband’s identified: sexual interests are strange and they

1. Battering Rape: Many marital rape use torture and force to force his victims are battered wives and wife for participating in such violence and terror are an integral activities. part of their lives. Women To put it simply, marital rape refers to experience physical and sexual unwanted intercourse by a man with his wife violence. Men hit their wives and obtained by force, threat of force, or physical violence, or when she is unable to after insulting and abusing them in a give consent. It is a non-consensual act where wife’s consent is ignored or ruptured 3 They can be charged if they use violence by a husband and wife is physically and without force or threat; or if the wife is sexually abused.4 Thus, it becomes important incapable of giving consent because of a to explore the dynamics of heterosexuality mental disorder or a developmental or that reinforces masculinity and how it physical disability about which they are operates to legitimize women’s sexual cognizant, or if the wife is prevented oppression within the institution of from resisting due to intoxicating, marriage. anesthetic or controlled substances administered by them or with their knowledge; or if the wife is unconscious of the nature of the act at the time it 4 Priyanka Rath, “Marital Rape and the occurred, and this is known to them; or Indian Legal Scenario”, in Indian Law if intercourse if forced on the wife by Journal, vol. 2, issue 2, 2007. the threat of deporting or incarceration. (http://www.indianjournal.com/ on Ibid., pp. 377-378. 12.08.2009). 127

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Feminist Interrogation of and forms of coercion are normative5 within Heterosexuality: Pivotal to Legitimizing marriage. So the feminist critiques of Masculinity and Women’s Sexual heterosexuality took the oppression of Oppression women as their point of departure. Sheila Jaffrey viewed heterosexuality as pivotal to Post modernist thinking has introduced the women’s oppression. Stevi Jackson idea of viewing men and women and discussed heterosexuality in terms of both divisions between them as discursive heteronormativity and heteropatriarchy or constructs, which opened up heterosexuality hetero-oppression. In heteronormativity, and within this masculinity to interrogation. heterosexuality is considered as a norm and Though Mary Wollstonecraft from a liberal any alternative is viewed as ‘other’ or standpoint had first questioned the ‘marginal’.6 Alternatively, heterosexuality normative modes of male sexuality in the leads to the hetero-patriarchy as if that is the late eighteenth century, two centuries later, standard norm and women find it very the development of sexology also witnessed difficult to get rid of this and ends up being a decline in feminist attention to sexual captured in the male dominated system that politics. In fact, sexology, with its scientific is heterosexual in character. engagements legitimized the patriarchal model of sexuality which was found in the Within this heterosexual structure model of heterosexuality naturalizing the pleasure for sex does not pertain to women’s domination of men over women. Through desire, but is used to discipline women sexology and its popularization with sex according to men’s wishes. Women manuals and essentialisation of penis and discipline their own bodies and pleasure to phallus by Freud and Lacan respectively, the suit men, and thus, concede sex as norms of sex were re-casted as immutable penetration alone as it is pleasurable for men and determined by laws of nature. Such and it is assumed that penetration is ideas not only accepted and legitimized male pleasurable for women as well. With this aggressive behavior as natural but also made perspective sex within marriage is always women responsible for their rape within marriage.

With the emergence of ‘women only’ 5 Lynne Segal is of the view that to groups and practice of consciousness raising generalize heterosexual relationship as among them, feminists coined the slogan the foundation of rape and sexual “the personal is political”, that is because violence actually devalues the trauma of women discovered that many of their the rape victim. See, Lynne Segal, individual problems and anxieties were “Feminist Sexual Politics and the shared by others and concluded that these Heterosexual Predicament” in L. Segal were not personal but derived from their (ed.), New Sexual Agendas, Basingstoke, social and political situation and within Macmillan, 1997, pp. 36-37); and, Susan marriage it is more prominent because Estrich argued that radical feminists women do not have right to say ‘NO’ to arguments are trying to prohibit all sex. their husbands for sexual intercourse. See, Susan Estrich Real Rape, MA, Feminists like Sheila Jaffrey , Mackinnon, Harward University Press, 1987, p. 82. Dwarkin, Russell, Jackson, Kelly, Clark and 6 Stevi Jackson, “Heterosexuality, Lewis, Burt, Berger and Searles, considered Heteronormitivity and Gender sexual violence simply as the endpoint on a Hierarchy: Some Reflections on Recent continuum of heterosexual interactions Debates” in Jaffrey Weeks, Janet where male aggression and female passivity Holland and Matthew Waites (eds.), are integral to the socially constructed roles Sexualities and Societies: A Reader, Cambridge, Polity Press, 2003, pp. 71- 73.

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regarded pleasurable for women, which experience and practice — all of which makes it unquestionable. intersect with gender, which in turn, is sustained at a variety of levels. It is interesting to note that some Heterosexuality in its gendered form creates feminists have also strongly defended a hierarchical platform that gives privilege to heterosexual eroticism. Lynne Segal, for masculinity over feminity.10 Tamsin Wilson instance, is aware of inequalities in further argues that gender and heterosexual relations but this, according to heterosexuality are mutually constituted to her, is ‘incidental’, and she argues that the extent that heterosexuality heterosexual relations (consensual sex) could institutionalizes subordination of women generate equality at a broader level and even and puts forth the concept of heteropolarity sexual passion is capable of transforming, — the socially constructed difference that even dissolving gender because all positions men and women as oppressive dichotomies slide away in a complementary opposites which is crucial 7 — sexual act. On the other hand, for Wendy for maintenance of heterosexuality11 and Hallway penetrative sex is not about masculinity resulted from this. oppression or subjugation but about feeling somebody’s love inside the body.8 Such an Women’s identity is determined within understanding of heterosexuality accords heterosexual relations as a wife, girlfriend, higher priority to penetration and is not able daughter or mother. Association with these to see politics of hegemonic masculinity identities affects the ways in which, women behind sexual acts. In fact, heterosexuality is experience the institution and practice of understood as penetration by man, while heterosexuality. In sexual terms too, her some scholars also view it in terms of identity is shaped by heterosexual invasion and colonization of women’s imperatives — the need to attract and please bodies. An alternative reading of this a man. This is heterosexuality that produces phenomenon is offered by Carol Smart who conventional feminine identities in which suggests discouraging penetration from women’s self worth is assumed in her desire heterosexuality so that penetration’s to be sexually attractive that is closely bound privilege place, resulting in masochistic sex, up with the gendered disciplinary practices as an essential heterosexual act can be through which docile female bodies and challenged and we can move towards post masculine imperatives are produced.12 heterosexual desire.9 There are indeed a host of everyday Radical feminists, on the other hand, practices through which the social understand heterosexuality in context of technologies of gender produce men and gender. Heterosexuality is not a monolithic women as gendered subjects. Drawing upon but a complex of institution, identity, the Foucault and Althusser’s notions of interpellation Butler deploys the concept of 7 interpellation to explain how particular kinds Lynne Segal, “Feminist Sexual Politics of identities are produced. Such discursive and the Heterosexual Predicament” in L. Segal (ed.), New Sexual Agendas, power not only constructs our minds, but our Basingstoke, Macmillan, 1997, p. 86. 8 Wendy Hallway, “Theorizing 10 Jackson, op. cit., 2003, p. 78. Heterosexuality: A Response”, Feminism 11 T. Wilson, “Which One’s the Man? The and Psychology, London, Sage, 1993, pp. Heterosexualisation of Lesbian Sex”, in 413-414. D. Richardson (ed.), Theorizing 9 Carol Smart, “Desperately Seeking Post Heterosexuality: Telling in Strength, Heterosexual Woman”, in Janet Holland Buckingham, Open University Press, and Lisa Adkins (ed.), Sex, Sensibility and 1996, p. 126. the Gendered Body, Basingstoke, 12 S.L. Bartky, Feminity and Domination, New Macmillan, 1996, p. 236. York, Routledge, 1990. 129

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whole beings, including our bodies, because marriage because it is considered normal to discourses, “actually live in bodies”.13 This play their sexual drive on their wives even in notion of reiteration of interpellation can well violent ways. Second, a “have / hold be understood in the context of sexual discourse” has played an important role in practice within marriage that helps to shaping women’s sexuality in relation to men understand how the physical bodies function within marriage. Women’s sexuality is according to the practices of normative considered asexual, and must be viewed heterosexuality. Such practices of within the parameters of a monogamous heterosexuality determine our physical heterosexual relationship, for producing experiences of sex and their discourses children. Some also consider a woman’s implicitly constitute subjectivity and positions sexuality as dangerous and, always in need of us in particular ways. Women are, for control.15 instance, trapped in the passive feminity within marriage which is accepted as a In both these discourses, men are ‘natural’ phenomenon without realizing that seen as the subject and women as objects of she has been forced in this social and cultural a sexual discourse. Husbands are considered web of subjugation. She cannot even as always ready for sex and it is assumed that recognize and resist male sexual drive it is one of the wife’s duty to arouse this discourse and the coital imperative14 which interest. A heterosexual matrix makes it very function together to ensure that penis vagina difficult for women to step outside this penetration becomes a necessary part of a discourse. When a woman is not considered “real” sex for heterosexuals that is precisely sexual or attractive she is often labeled as why rape within marriage is always “ball-breaking”, “a cock teaser”, “frigid”, “a considered as something which even does not cold bitch’ or “uptight” and if woman exist. doesn’t show her interest in sexual acts with her partner, she herself enters a discursive The paper draws upon three space riddled with pejorative and potentially dominant discourses of heterosexuality punitive consequence.16 Third pertains to a outlined by Wendy Hallway that provide a “permissive discourse” in which women are cultural foundation on which heterosexual portrayed as sexual as men. However, it does relations are organized and by which not have a libratory context but deploys masculinity is normalized within marriage. hidden components of double standard and First, male sexuality is pervasively influenced gender inequality in sexuality. Characterizing by a “male sexual drive discourse” that it as “pseudo liberation”, Segal points to produces masculinity. It holds that the drive pornography reaching its higher peak, where or need to have sex is uncontrollable for women’s bodies were not only subjugated men and this overwhelming drive is natural, but this subjugation got a platform to be and thus a man can go to great lengths to enjoyed.17 For many feminists, this new satisfy this need which is justifiable within equalization of woman was a conduit of misogynist fantasy.

13 Judith Butler, Bodies that Matter: On In fact, the phenomenon of Discursive Limits of “Sex”, London, heterosexuality cannot be seen as an Routledge, 1993, pp. 35-38. 14 Male sexual drive discourse holds that the desire or the need to have sex is a 15 Wendy Hallway, Subjectivity and Method in strong drive that exists in all healthy Psychology: Gender, Meaning and Science, normal men. Coital imperative is used to London, Sage, 1989. advance the idea that heterosex is about 16 Nicola Gavey, Just Sex: The Cultural penetrating vagina by penis. It is Scaffolding of Rape, London, Routledge, considered to be uncommon to exclude 2005, p. 105. coitus from heterosex. 17 Segal (1983), op.cit., p. 30.

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individual preference, as something into belts, denial of lesbian existence and clitoris; which people either drift or are fixed as a imposition of male sexuality upon women result of psychological processes in by rape within marriage, wife beating, incest, childhood but rather as a socially the socialization of heterosexual romance in constructed institution18 which hegemonise everyday life, psychoanalytic doctrines of masculinity. Radical feminists emphasize frigidity and vaginal organism, pornographic that masculinity should not be taken for depictions of women responding pleasurably granted as a norm but its prevalence needs to sexual violence and humiliation, are all to be explained. different meanings which make up the ideology of sadistic masculinity being Masculinity, feminists argue, is the normal. Masculinity is, thus, forced on most important base of patriarchy. In a women and violative aspect of masculinity is heterosexual relationship, women considered normal by women themselves emotionally, materially and sexually service within marriage.21 men and owing to their masculine upbringing, men are in a dominant position Kathleen Barry also argues that this at home as well as in the public domain. compulsory heterosexuality resulted into Adrienne Rich further argues that women essentialist masculinity legitimizes all kinds are bound to heterosexuality, which has of enforced conditions under which women been imposed on them as compulsory. That live subject to men such as in prostitution, is perhaps why she has coined the term of marital rape, father-daughter and brother- “compulsory heterosexuality”.19 Drawing sister incest, pornography, bride price, the upon Rich’s work the paper articulates the selling of the daughter, purdah and genital term “compulsory masculinity” because this mutilation. Rape within marriage is a vicious is masculinity which is imposed on women’s circle that leads to the rationalization and mind and body with in heterosexual acceptance of other forms of enslavement, relations which is the root of masculine where the woman is presumed to have imperative of marriage. Rich elaborates chosen her fate to embrace it passively.22 different spheres through which it works Characterizing such conditions as that of and male power is perpetuated. Women’s women’s sexual slavery, she argues that it is denial of their own sexuality by means of present in all situations where women or clitoridectomy and infilbulation20 chastity girls cannot change their given conditions, or, are subject to sexual violence and 18 Even Freud considered that all people exploitation and marriage is such an are originally bisexual, but become institution where she finds herself stuck in. heterosexual during the normal path of In this heterosexual matrix, the conquering development. male sex drive is pervasive and the penis has 19 Adrienne Rich, “Compulsory a life of its own, which not only justifies Heterosexuality and Lesbian Existence” in Ken Plummer (ed.), Sexualities: Critical prevented from engaging in premarital Concepts in Sociology, London, Routledge, sex. This, procedure is often 2002. accompanied by infilbulation, or the 20 Clitoridectomy refers the partial or stitching together of the vulva. This is complete removal of a woman’s clitoris. usually done following the removal of As a result, after undergoing a the clitoris, when the woman’s labia clitoridectomy, most women can no major is sewn together, leaving an longer function sexually. However, due opening small enough for only urine and to cultural beliefs in certain parts of the menstrual blood to pass through. world, the procedure is a common rite 21 Rich, op. cit., pp. 104-105. of passage that marks a girl’s transition 22 Kathleen Barry, Female Sexual Slavery, into womanhood. It is believed that by New York, New York University Press, removing the clitoris women are 1979, p. 33. 131

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sexual slavery but has become the norm and used during sex then the wife would not rationale for adult male sexual behavior – a understand him masculine enough.25 condition of arrested sexual development.23 A close association between male Women learn to accept the inevitability of sexuality, power and violence is this drive as natural. In heterosexuality, the constructed as a biological necessity and problem does not lie in ‘hetero’ per se, but therefore, inevitable and, at the same time, in the way, it is practiced, which is masculine there is a connection between female in nature. Masculinity is the problem and a sexual pleasure and pain. Ellis argues that feminist understanding renders it as a women instinctly enjoy roughness, socially constructed phenomenon. violence, pain and danger and in this way women enjoy their subjugation26 within Janet Holland, for instance, points out marriage. On the other hand, the that heterosexuality is not about putting masculine tendency is to enjoy giving this masculinity and feminity in opposition, but it pain and violence, and thus, men enjoy is about masculinity primarily because dominating women. A. Marro corroborates feminity simply does not exist or, does not this viewpoint and emphasizes the force as play an active role in heterosexuality. With the foundation of male sexuality and it is her notion of the “The Male in the Head”, also a quality in men wanted by women. she emphasizes that it is a kind of That is how, the aggressiveness in surveillance power of a “Male dominated masculinity and submissiveness in feminity and institutionalized heterosexuality” which stands naturalized.27 MacKinnon further has in its base Foucauladian notion of states that inequality is always covertly or panoptican model that produces surveillance overtly inclined into the social conceptions 24 power to regulate the acts of the people In of male and female sexuality of masculinity heterosexual matrix, there is no room for and feminity and of sexiness and women’s pleasure and desire since women heterosexual attractiveness. In this way, are a sexual object, they are considered as a sexual intercourse within marriage normally natural sexual prey to men within marriage occurs between un-equals. The nature and and it is assumed that women love it. pressure of heterosexual force actually Sexuality and violence are considered amounts to eroticized women’s congruent, so that for women sex is subordination. essentially masochistic, humiliation pleasurable and physical abuse erotic. In John Archer defines masculinity in terms of other words, enforced submission and use power and argues that men who internalize of cruelty are taken as sexually “normal” masculine role attributes and values, within marriage. Mackinnon points out that perpetuates a proclivity towards sexual in a heterosexual relationship where male is

supreme, the notion of consent within 25 marriage has no meaning because sex is C.A. Mackinnon, Feminism Unmodified: always violent. In this sense in marriage Discourses on Life and Law, London, Harvard University Press, 1987, p. 92. men’s violent nature is taken as normal and 26 women’s screaming is considered as a H. Ellis, Studies in the Psychology of Sex, 3rd symbol of pleasure. For Mackinnon too, the edition, London, William Heinemann, 1948, pp. 3, 32, 95. institution of heterosexuality has admitted 27 force on women by men in normal sexual Ellis also argues that only to a certain encounters. This idea has made force or limits a woman really enjoys the pain, violence an integral part of sex within discomfort or subjection to which she marriage. It is assumed if force has not been submits but she has not clarified who will decide the parameters of these aggression and pain. In this way she has 23 Ibid., p. 140. not considered for the active ground for 24 Gavey, op. cit., p. 112. women in heterosexual sex.

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aggression. Coercive strategies are used by husband to use, abuse and violate as and men to obtain sex which has its basis in when he desires. The exemption of marital adversarial attitude to women who are rape from Section 375 and Section 376A of viewed largely in terms of sexual the IPC shows that the laws are not only gratification.28 Men’s masculinity is assured blind, but it’s also patriarchal in nature. through his categorization as Macho male According to the rape law, rape is a sexual whose sense of self worth is bolstered by the intercourse with a female not his wife pursuit of dominance and exploitation of the without her consent. This gave David opposite sex. This masochism is very much Finkellor and Kersti Yllo an understanding engrained in the state apparatuses and Indian that “the marriage license can indeed be legal system that it naturalizes rape within called a ‘license to rape’.”29 marriage and leaves wife’s body unquestionable when it comes on terms with In the dictionary of judicial grammar husband’s context. the law has defined two circumstances – the Legal and Statutory Discourse on first in which rape cannot occur by Marital Rape definition and the second where no judicial In India marital rape exists de facto but not verification is required for establishing de jure. According to legal definition of rape, consent. The first holds true in cases of as described in Section 375 of the Indian sexual intercourse between a man and his Penal Code, if a man has a sexual intercourse wife, where latter’s consent is taken for with his wife who is not below fifteen, it is granted. The second is the case of a girl not rape. So, a marital rape cannot occur by below the age of 15 in which case only the definition in the case of sexual intercourse fact of intercourse is sufficient to establish 30 between husband and wife, in which a the offence of rape. possibility that a man can use force to have The idea of marital rape is associated sexual intercourse with her is, thus, in the with two categories wherein law recognizes realm of juridical nullity. Section 375 and rape based on the age of consent decided by 376 of the IPC, therefore continues to the state through its Age Of Consent Act. remain a site of struggle which do not accept Age of consent is about the age at which a that all rape is rape even if it is not by a girl can give her consent to marriage. Second stranger. Law still follows the binary system category is about the will of the married of logic that is thinking in the oppositional terms of active/passive, truth/lie, rationality/emotionality, man/woman, in 29 David Finkelhor and Kersfi Yllo, License which the female is always subordinate to to Rape: Sexual Abuse of Wives, New York, the male. The Free Press, 1985, p. 2. 30 An analysis of Section 375 and 376 Our Constitution guarantees equality proves that Indian law is bounded with to both men and women. However non- patriarchal ideology, if we look into three criminalization of marital rape violates all positions regarding the wife. (a) below fundamental rights guaranteed to its women the age of 12 (b) between the age of 12 citizens. Article 14 ensures equality before and 15 years (c) not below the age of 15. law and Article 19 guarantees the right to In the first and second circumstances freedom to every citizen but the wife is severe punishment is prescribed. In excluded from their purview. Laws do not contrast to it, in the third instance, by consider wife as a person or a citizen but virtue of the exception clause to Section merely as an object, a property of her 375, forcible sexual intercourse with a wife above 15 years is not considered to 28 John Archer, “Male Violence in be rape at all. See, Nidhi Tondan and Perspective” in John Archer (ed.), Male Nisha Oberoi, “Marital Rape: A Violence, New York, Routledge, 1994, pp. Question of Redefinition”, in Lawyers 3, 8. Collective, March, 2000, p. 24. 133

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women, where the law has not recognized court cases that considered different aspects rape within marriage. According to law, if a of the child marriage. The first was woman is legally married (in the context of ‘Rukhmabai case’ and the second age) then she does not have any right to say ‘Phulmonee Dasi’ case. Rukhmabai case no to her husband for sexual intercourse. offered a famous example of imposing the The following section discusses their oppressive and aggressive nature of Hindu implications in detail. patriarchal traditions of Hinduism on women doing “her duty”. This case was Age of Consent Controversy: Where is the Will of fought under restitution of conjugal rights Women? and indirectly became the issue of the consent or the age of consent.32 Age of consent controversy is directly linked to the issue of marital rape, because the In 1884, Rukhmabai’s husband Dadaji whole discourse of Age of Consent Act Bhikaji filed a suit for restitution of conjugal (1860, 1891, and 1927) evolved as a result of rights over Rukhmabai. She had refused to occurrence of marital rape. The inclusion of live with her husband on many grounds such marital rape was first recommended by J.C. as his poverty, uneducated status, Thomas, a member of the law commission consumptive nature and more importantly, of 1846, who argued that because of the her lack of consent to the marriage when she prevalence of child marriage in India, it was was only eleven years old and, was not necessary to include married and unmarried eligible to give her consent for that marriage, girls in the ‘age of consent clause’ of the and the fact that it had not been Indian Penal Code. In view of the growing consummated. But all these claims were in abuse of child wives, colonial government vain because the court decided against decided to include Thomas’s suggestion in Rukhmabai and ordered her to go back and th the 5 clause (in the exception) to Section live with her husband Dadaji, or if she didn’t 375 of the Indian Penal Code. Some Hindu follow the law, she will face imprisonment. reformers such as Brahmo reformer A.K. Rukhmabai was ready to undergo Dutt, and Pandit Ishwarachandra imprisonment rather than live with her Vidyasagar, also supported inclusion of husband. Ironically by enforcing restitution married girls in the age of consent clause in of conjugal rights Britishers actually 1860 Penal Code. The nine years age of perpetuated child marriages, as in this case consent as proposed by Thomas, was raised Rukhmabai was forced to go back to her to ten for both married and unmarried girls. husband to consummate the There was hardly any resistance against this marriage.33 Hindus were satisfied because the change and it was prominently accepted in India.31 It became a controversial issue when the Native Marriage Act III of 1872 sought 32 Certain provisions of Section 260, Code to introduce extremely radical provisions of Civil Procedure 1882, introduced by prohibiting polygamy, legalizing divorce and colonial law, related to the execution of setting up a fairly high minimum age of decrees for the restitution of conjugal marriage. rights and suit for the recovery of a wife. By this law husbands could use threats After this the 1891 Age of Consent Act, of imprisonment to force their reluctant came into existence which was brought after wives to live with them. two drastic incidents. Legally, the demand 33 Sudhir Chandra, “Whose Laws: Notes for consent legislation was reinforced by two on 19th Century Hindu Case of Conjugal Rights”, in Vasudha Dalmia and Hvon 31 Mrinalini Sinha, Colonial Masculinity: The Stitencron (ed.), Representing Hinduism: Manly Englishman and the Effeminate The Constitution of Religious Tradition and Bengali, Manchester, Manchester National Identity, New Delhi, Sage, 1995, University Press, 1995, p. 162. pp. 155, 167.

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fear of imprisonment, it was argued, would Phulmonee. The law preserved the custom, make many young wives return to their and protected male’s right to enjoy an husband’s home and live a happy life.34 infantile female body.37 It is significant to note that orthodox These two cases highlighted the Hindus who had always opposed any disastrous consequences of child marriage interference by colonial rule in their personal beginning from lack of choice and laws favoured the colonial law in compatibility, leading to unhappiness in the Rukhmabai’s case because that law helped in bride’s life and premature consummation strengthening patriarchy. In other words, resulting in tragic death of the bride. That is they didn’t shy away from supporting the how a reformer started campaigning against colonial rule if it led to the curtailment of child marriage or sexual abuse of a girl child women’s rights.35 It was Malabari who within marriage. Efforts of Malabari and refused to consider marriage between Dadaji these cases reinforced Sir Andrew Scoble’s and Rukhmabai as a valid marriage. Raising resolve to amend Section 375 of the Indian the issue of consent, he insisted that since in Penal Code. Scoble drafted the Bill which Rukhmabai’s marriage her consent was was introduced by the Viceroy of India, absent, so marriage could not be considered Lord Landsdowne, into the Supreme as valid.36 Legislative Council on January 9, 1891. The age of consent was raised to twelve years in The case of Phulmonee was the case of both married and unmarried girls even more important because it not only but in the case of married girls the offence divided the society into two ideologies— by the husband was made non-cognizable Revivalists and Reformists, but also shook and the law would apply all religious the patriarchal foundations of the Indian communities. After a well reasoned debates society. In 1890, Phulmonee, a girl of about and wise speeches the Age of consent Act ten or eleven years of age was raped to death was passed on March 19, 1891.38 This Age of by her 35 years old husband Hari Maiti, but Consent Act of 1891 created a hue he was not charged with the rape as it was throughout India, resulting in sharp claimed that Phulmonee had been within the divisions between Revivalists and Reformists statutory age limit of ten. The judges were opposing the bill and favouring it.39 forbidden to go beyond the established law: “Neither judges nor juries have any right to The whole debate centered around do for themselves what the law has not two contrasting notions of subjection: the done.” The Phulmonee’s mother, aunt and grandmother’s arguments that the marriage 37 Tanika Sarkar, Hindu Wife, Hindu Nation: had never been consummated earlier, and Community, Religion, and Cultural that Hari Maiti had forced himself on their Nationalism, New Delhi, Permanent daughter were ignored. The court believed Black, 2001, p. 212. that the couple had slept together earlier and 38 Meera Kosambi, “Girl Brides and Socio- for them the fact that Phulmonee gained the Legal Change: Age of Consent Bill age of ten was sufficient to give benefit of (1891) Controversy”, in Economic and doubt to Hairi Maiti. Tanika Sarkar explains Political Weekly, vol. 26, no. 31-32, 3-10 that then main concern was the exoneration Aug, 1991, p. 1859. of man, rather than the horrible death of 39 Kosambi has a different opinion on this, she has searched for another strand 34 Charu Gupta, Sexuality, Obscenity, between revivalists and reformists and Community: Women, Muslims and the Hindu that was reactionists. According to her Public in Colonial India, New Delhi, the fight was not between Reformists Permanent Black, 2001, pp. 129-130. and Revivalists, but between reactionists 35 Ibid., p. 130. and reformists. She clubs together the 36 Chandra, op. cit., p. 169. revivalists with reactionists. 135

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colonized Hindu male, denoting the forced legitimacy of their rule.43 Their government surrender and real dispossession of the male, made no changes in the existing patriarchal and the apparently subordinated Hindu wife structure. The British secretary to the public at home. Such juxtaposition between the health society wrote to the government of husband and wife and former’s conjugal Bengal: rights remained at the centre stage of debates on domination and subordination; Council directs one to lay and subjection and resistance. special stress upon the point... that they base no Revivalists could not bear the charge against the native interference of colonial rule in the private community.... The council sphere — the only place where they could admits that our national exercise their power and turned it into a test fellow’s subjects must be of their manhood by criticizing Bill on allowed the fullest possible accounts of rituals, ethics and rites.40 They freedom in deciding when argued, for instance, that this Bill would their children should be violate the garbhadan ritual because it had ceremonially married. That, raised the minimum age for a girl’s marriage in the constitution of Hindu to twelve and, if she menstruates before this society, is a matter with age, as it happens with thousands of girls, which no government could these girls will have impure garbhas and their meddle and no government children would be impure as they won’t be ought to meddle. 44 able to offer ‘pindas’. Consequently, this would destroy the Hindu community and So, the colonial rule had a dualistic nature, in principle of Hindu domesticity.41 that, they favoured social reforms but wanted to sustain the patriarchal approach. The nationalists also projected the entire issue especially as a test of the reformer’s Reformists were also not much masculinity. Gangadhar Tilak claimed that different. They did not favour conviction of reformers were not masculine because of husband on the charge of marital rape, but their inability to control their own argued that the crime of a sexual intercourse household or to protect their daughters or between a husband and wife should be that they are asking the colonial government recognized as ‘criminal assault’ and not 45 to have watch over their private family rape. Their concern was not to protect the matters. The support for the Bill was child wives from harm but to save men from interpreted as support for the government, the punishment. Their rejection of child which in turn, was linked to the effeminacy marriage was also born out of the need for of reformists.42 maintaining good and healthy nationhood.46 The word ‘consent’ itself was The British government which used in the reference of a girl’s ‘body’ but imposed the Bill also had their political not her ‘will’. Medical and legal experts, motives behind these reforms. They allowed reformists and nationalists all associated them to intervene into the daily social and consent with a certain physical capacity cultural lives of Indians. Britishers wanted to when a girl could sustain intercourse without create ideological hegemony to seek much damage. The girl could get the

43 Himani Bannerji, Inventing Subjects: Studies in Hegemony, Patriarchy and Colonialism, India, Tulika, 2001, pp. 72-75. 40 Sarkar, op. cit., pp. 197-198. 44 Sarkar, op. cit., p. 239. 41 Ibid., p. 224; Sinha, op. cit., p. 148. 45 Sinha, op. cit., p. 162. 42 Sarkar, op. cit., p. 159. 46 Sarkar, op. cit., p. 238.

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security by law only till the age of twelve. So revealed that most were not aware of it or it was her body not the will of the girl that thought it could be disregarded. Still, this signified consent.47 Act was a victory for the women’s movement 52 Finally it may be concluded that reformists and revivalists both had a The whole debate on the age of patriarchal approach. The concept of the consent controversy brought the women’s self rule in the domestic sphere was bound body under the scrutiny of the debate with the sacrifice of the physical safety or between the reformists and the revivalists. the body of Hindu girl or her life, as might Thus, women’s body was at the centre be necessary.48 This sacrifice could bring stage and her will was ignored. The whole autonomy for the Hindu male or Hindu historical debate highlights the fact that it community.49 Both reformist and revivalists was the state that enforced marital rape. In didn’t break patriarchal matrix.50 the contemporary period too, the state and law have become instruments for In 1927, Harbilas Sarda mooted the enforcing marital rape. This aspect has idea that the consent of the child wife was been addressed in the following section. not enough, but it was necessary to fix a minimum age for marriage. The issue was Law and State: An Instrument Enforcing Marital hotly debated in the legislative assembly. Rape And, an Age Of Consent Committee was set up that submitted its reports and evidence The foundation of the legal justification for from various provinces. The report revealed the marital rape exception was expounded in that there were many cases of infringement the famous declaration made by Sir Matthew th of the law of consent but very few came Hale: C.J. in 17 Century England, Hale before the courts.51 The Bill, which was Wrote: - “The husband cannot be guilty of named Sarda Act, was finally passed in 1929, rape committed by himself upon his lawful fixed the minimum age of marriage at 14. wife, for by their mutual matrimonial Revivalists launched an agitation but this contract, the wife hath given up herself in time, there was an organized response by this kind unto the husband, which she 53 women’s organization, All India Women’s cannot retract”. Under Lord Macauly, Commission (AIWC) that took a lead in when the first Indian Law Commission, mobilizing support. However, in practice it drafted the Indian Penal Code in 1837, it proved to be a dead letter and was not able followed the same law by declaring that to stop child marriages throughout the “sexual intercourse by a man with his own 54 province. Reports received from wife is in no case rape”. This established commissioners and district officers of Uttar the notion that once a woman is married, Pradesh on the implementation of this act she doesn’t have the right to refuse sex with her husband. This allows husband’s rights of

sexual access over their wives in direct 47 Ibid., p. 243. 48 contravention of the principles of human Cultural nationalists made a comparison rights and provides husbands with a “license between Phulmonee’s death and death to rape” their wives.55 of Indian culture. Their motive to keep the culture alive or superior made her death insignificant. They argued that the death of an ordinary girl Phulmonee 52 Ibid., p. 138. Dasee can’t be recognized at the cost of 53 Sinha, op. cit., p. 161. the death of the culture. See, Sarkar, op. 54 Ibid. cit., p. 236. 55 Saurabh Mishra and Sarvesh Singh, 49 Ibid., p. 18. “Marital Rape: Myth, Reality and Need 50 Kosambi, op. cit., p. 1860. for Criminalization”, PL WebJour 12, 51 Gupta, op. cit., p. 136-137. 2003. (http://www.ebc- 137

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The tensions between judicial desire are the sites of judicial discourse and grammar and judicial verification may silence is maintained on the contrasting restrict a husband from inflicting grievous attributes of female desire and male body. bodily harm to his wife during sexual Male desire is considered ‘normal’ or intercourse but in the realm of judicial ‘natural’ and female body as the natural site grammar, this cannot be classified as rape. on which his desire is to be worked out. In On the other hand if a girl is below 15 years this sense, women are not seen as desiring of age consents to sexual intercourse, then subjects in the rape laws as wives they do her consent somewhere reduces the period not have the right to withhold consent from of imprisonment.56 The fulfillment of male their husbands.59 Even where the state desire within the confines of matrimony is protects them from the desires of other considered legitimate, irrespective of how it men, their concern is not the protection of is done. The legal codes do not recognize bodily integrity of women, but protection of marital rape and consequently at the level of the property of the legitimate property judicial grammar, this category does not owner, that is the husband. exist. In the process of judicial verification, the judges can find instances when grievous Hence marital rape is not recognized, bodily harm has been done to the wife in but law has prescribed punishment for non- exercising a man’s conjugal rights but even age marriage. Marriage is a contract and then this whole act could not be classified as under Section 23, Indian Contract Act, 1872, a sexual offence by the husband.57 To quote if both parties are below the age of consent Das, “in the case of conjugal couple, the then it is an invalid contract and since their surface of the female body has no marriage is not valid, the question of marital 60 information to convey for determining the rape does not arise. ‘nature’ of the inside for she does not exist Another area of concern is Section 9 58 A as a subject for purposes of rape law”. of the Hindu Marriage Act, 1995 that gives woman doesn’t have rights on her own both the husband and wife a right to apply body, as conjugal rights are only for men to court for restitution of conjugal rights where his rights on her body are naturalized when either the husband or wife has in the political and social definitions. She withdrawn from the society of the other. asserts that in the Indian judicial discourse Does the Hindu wife have the right to the relationship between power and sexuality privacy, enabling her to have control over has played a dynamic active role in the her body in the light of such a provision? production of bodies and speech both — Interestingly the Manu Smriti wrote against male and female. Female body and male forced cohabitation. Manu said, “A man is advised to approach her wife only when she india.com/lawyer/articles/ 645.htm on desired it or intercourse is not allowed if the 12.07.2009). wife or the husband is suffering from any 56 Though it is prescribed in law that even disease”.61 In the modern context as well, if a girl, who is below 15 years of age, gives her consent to sexual intercourse, the man who is engaged with her in the act of sexual intercourse would be criminalized for rape. 59 Ibid. 57 The well known case of this kind was 60 Nidhi Tondan and Nisha Oberoi, Phulmonee Dasee case as discussed in “Marital Rape: A Question of the text earlier. Redefinition” in Lawyers Collective, March 58 Veena Das, “Sexual Violence, Discursive 2000, p. 24. Formations and the State”, in Economic 61 Ramnika Jalali, Indian Women in the Political Weekly, vol. 31, no. 35/37, 1 Smrities, Jammu, Vinod Publisher, 1944, September 1996, p. 2421. pp. 128-129.

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sexual relations should not be restored when Giving an account of parliamentary the marriage in essence has broken.62 debates, Pratiksha Baxi has demonstrated that during its discussions on marital rape, In one such important case in the the use of force in sexual intercourse was Andhra Pradesh High Court filed in July, considered normal. In the report of the joint 1983, Venkata Subbiah sought restitution of parliamentary committee on the proposed conjugal rights against his wife, film actress amendments to the rape law, a separate Sareetha. In the judgment, Justice P.A. category of illicit sexual intercourse not Chowdhry concluded that Section 9 amounting to rape was introduced to cover constitutes the grossest form of violation of cases in which a man who is separated from an individual’s privacy and human dignity his wife has forcible sex with her. In favour which are both included in the fundamental of this amendment they stated that right to life and personal liberty guaranteed by Article 21 of the Constitution. That The committee feels that in a judgment declared that forced sex, like all case where the husband and forced things, is a denial of all joy... no wife are living separately positive act of sex can be forced upon an under the decree of judicial unwilling person, “because nothing can separation, there is a conceivably be more degrading to human possibility of reconciliation dignity and monstrous to human spirit than between them until a decree to subject a person by the long arm of the of divorce is granted. Hence law to a positive sex act.”63 It noted that the intercourse by the restitution of conjugal rights is a ‘barbarous’ husband with his wife remedy, and is not good for society. It’s without her consent during unconstitutional to exercise sexual rights on such period should not be wife in the grant of restitution of conjugal treated as, or equated with rights. rape. The committee is of the opinion that intercourse Though this judgment still falls short by the husband with his wife of recognizing marital rape, there is no under such circumstances doubt that it spreads a message that forcible should be treated in illicit sexual intercourse within marriage is also sexual intercourse.64 unconstitutional and deprives a woman of her rights to life and liberty (Article 21). In Boddhisattawa Gautam v. Shubhra Baxi, on the other hand, argues that “the Chakraborty, IR 1996 SC 922, the Supreme distinction between rape and sex from the Court noted that rape is a crime against basic women’s point of view gets blurred for the human rights and a violation of the victim’s state permits force in sexual intercourse, not most cherished of fundamental rights only for describing it as normal but by namely, the right to life enshrined in Article normalizing it for the sake of 21 of the Constitution. But once again, it ‘reconciliation’. Here power is deployed to shied away from recognizing marital rape as constitute married woman’s sexuality as a criminal and sexual offence. ‘passive’ for the capacity to say ‘no’ to sex within marriage is not recognized by the law as a legal right.”65 In the committee, however, several members of Parliament

argued that marital rape should not be 62 Tondan and Oberoi, op. cit., p. 24. 63 Vimal Balasubrahmanyam, “Conjugal Rights vs Personal Liberty: 64 Pratiksha Baxi, “Rape, Retribution, Andhra High Court Judgment”, Economic and State: On Whose Bodies?” Economic and Political Weekly, vol. 18, no. 29, Jul. 16, 1983, Political Weekly, XXXV, 14, 2000, p. 1198. p. 1264. 65 Ibid. 139

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criminalized, irrespective of wife’s otherwise.69 The Delhi Commission of age. Senior advocate, Ram Jetmalani rejected Women and the National Commission for the idea of criminalizing marital rape because Women have also questioned CMRA and sexual intercourse between husband and PCMA because their definition of ‘child’ has wife is a right of husband. State should not not been specified and suggested that all have any right to interfere in their personal marriages below the age of 16 should be relationship. Moolchand Daga went much declared null and void and those between further to argue that if marital rape is the ages of 16 and 18, be rendered void at criminalized then, “woman would not have the instance of either party.70 been raped, but the poor man will certainly be raped in court.”66 Indian law only recognizes marital rape in case a girl is below the age of fifteen The 42nd Law Commission Report had years (under Section 375, IPC 1860, Act No. recommended that sexual intercourse 45 of 1860). However, this is mitigated by between a man and his wife below fifteen the religiously defined personal laws71, years of age be removed from Section 375 whereby even the rape of a young girl and made a separate offence. Consequently, between the ages of twelve and fifteen years an amendment to the IPC was proposed by carries a lesser sentence if the rapist is the way of the IPC (Amendment) Bill, 1972. married to the victim.72 This raises the The joint committee, however, took the question if both the state and women’s local view that intercourse by a man with his own communities are simply unwilling to wife, regardless of her age should not be confront the rape of young girls in the name regarded a rape. Consequently, it deleted the of marriage, which goes on every day. proposed new section in clause 157 of the Bill, which sought to introduce the offence There is another aspect of marital of marital rape.67 The law commission has rape, whereby rape is accorded the status of rejected proposals to repeal the marital rape marriage which became evident in Imrana exception on the grounds that it would case. Imrana was raped by her father-in-law amount to “excessive interference with the and then following a fatwa issued by some marital relationship”.68 local clerics she was forced to accept the miscreant as her husband. Even the Hindu By not criminalizing marital rape, women meet the same fate as in many cases governments and their agencies participate the penalty of rapists is mitigated if they in maintaining silence on sexual abuse, agree to marry the victim. Such judgments especially in case of marriages. Several tend to legitimize the continuation of marital studies, including the 2005-06 National rape.73 Health Survey (NFHS-3) have revealed that despite the Child Marriage Restraint Act (CMRA), 1929, and the Prohibition of Child 69 T.K. Rajlakshmi, “Child Redefined”, Marriage Act (PCMA), 2006, child marriages Frontline, vol. 25, no. 7, March 29–April still take place. They have failed to prevent a 11, 2008, pp. 91-93. child bride from living with her husband or, 70 Ibid. from being abused, sexually or 71 See Socio-Legal Aid Research and Training Centre (SLARTC), Rights of Women in India, Calcutta, 1995, p. 6, 24, 40. 72 Lotika Sarkar, “Rape: A Human Rights versus a Patriarchal Interpretation”, in 66 Ibid., p. 1197. Indian Journal of Gender Studies, vol. 1, no. 67 Ibid. 1, Jan-Jun, 1994, pp. 69-91. 68 Review of Rape Laws, Law Commission of 73 Saswati Chakrabarti, “The Commercial India, 172nd Report, 2000, Chapter 3, p. Heritage of Marital Rape in Relevance to 14. Indian Women”, in Gender Inequality, 3

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Marital rape, as it violates women’s bodily integrity and her self esteem, needs to be redefined. It is violent assertion of power and denies women the right to intimacy and

pleasurable sexual activity within marriage Domestic Violence Act: An Illusion and more than anything else becomes yet another instrument for further entrenching It is argued that marital rape has been the patriarchal value system. This brings a subsumed within the much awaited need to discuss the social aspects of marital Domestic Violence Act 2005. But this is not rape. correct. In fact, this Act has also been a real disappointment. It has provided civil Marital Rape: A By-Product of the remedies to the provisions that have already Society been noted or criminalized. On the issue of The phenomenon of marital rape must be marital rape, however, silence persists. Though Section 3 of the Domestic Violence understood in the context of society’s patriarchal structures because ultimately this Act acknowledges sexual abuse “harms or structure is responsible for rendering women injuries or dangers to the health, safety, life, powerless and allowing men in a dominant limb or well-being, whether mental or position. Patriarchal structure makes the physical, of the aggrieved person or tends to division of labour unequal for men and do so and includes causing physical abuse, wom sexual abuse, verbal and emotional abuse en, which “perpetuates the husband’s power over the wife. This is the context and economic abuse,” and its accompanying within which wife rape and wife beating explanatory note on “sexual abuse” includes 75 This is any conduct of a sexual nature that abuses, occur/s and often continues”. mainly because men treat their wives as their humiliates, degrades or otherwise violates private property, in fact, as the sexual the dignity of a woman.74 property of their husbands. Their economic In this definition the word unwanted status in the society is determined by their 76 sexual intercourse or rape is not used. The sexual and reproductive capacities. Wife inclusion of the term ‘sexual abuse’ alone rape is equally a manifestation of male would not allow women to charge their sexuality which is oriented to conquest and husbands for rapes because the law has domination, and to prove masculinity different interpretations for rape and sexual defined in terms of power, superiority, assault/abuse. A male, for instance, cannot be competitiveness, control and aggression, a raped but sexually assaulted. Moreover “real man” is supposed to get what he Section 375 of IPC still exempts the husband wants, especially in their sexual 77 from marital rape which makes the inclusion relationships. Groth notes: “wives are of term ‘sexual abuse’ void. Another point of regarded as possession or even opponents to concern is that it restricts sexual abuse in a be used, controlled or dominated…sex is domestic relationship of marriage or live-in, seen as the solution to all marital problems, only if it is threatening or grievously hurtful. It as well as the source of validation for the 78 is not about the will or desire of women. It is masculine identities”. decided by the state, when and in what condition she can rightly claim for protection.

75 Russell, op. cit., p. 4. April 2006. 76 Lorenne Clark and Debra Lewis, Rape: (http://www.meghbarta.org/nws/nw_ The Price of Coercive Sexuality, Toronto, main_p022b.php?issueId=6/§ionId The Women's Press, 1977, pp. 111-114. =29&articleId=127 on 12.07.2009). 77 Russell, op. cit., p. 357. 74 Rath, op. cit. 78 Cf. Clark and Lewis, op. cit., p. 120. 141

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With marriage all women learn that and she always remains in an illusionary sexual intercourse is formative of their satisfaction of body-for-self.83 79 identities as married women. The Many of them accept unwanted sex as dominant cultural discourse prescribes that a something normal, and as part of their duty woman without a husband has no life. If the to please their husband. With marriage, a woman doesn’t obey her husband, including women’s body is no longer her own body, it being sexually available to him, he would go has been taken over by the community of to other woman. So, to have ‘a life’, status, men to establish and legitimize their image esteem and honour as a married woman, she in society. Through socialization, such has to submit herself to the demands of her discourses about marriage create a web of husband. They have been taught that by norms, within which a woman encapsulates consenting to sexual experiences women herself as a whole. Foucault argues that gain legitimacy and symbolic value as good 80 discourse becomes normative and wives. The normative social biography normalizing ideals, according to which the associates honour with a woman who body is trained, shaped, cultivated and follows all the norms and rituals of married invested. The daily sexual disciplining of life. Consequently, women often do not married women can be seen as the operation accept the reality of marital rape. of biopower at the sight of individual women’s These are buttressed by societal bodies. “Biopower emphasized localized, beliefs that acknowledge male sexual routinized bodily practices in families and supremacy as a source of pride and measure constructs the body as a corporeal entity that of self worth. When that supremacy is becomes the systematic target for disciplinary measures implemented by local challenged, men need to reassert their 84 dominant position in the gender hierarchy. experts like family members”. Finkelhor and Yllo’s study shows that one In this way women can be seen as quarter of divorced or separated women victims of social practices and patriarchal reported a past incident of forced marital system whose bodies become a vehicle for sex.81 In Indian society attainment of their husband’s satisfaction. These puberty gives a free license to a husband for discourses discipline women, not through sex. Equating girl’s attainment of puberty the threat of violence or force, but by with a husband’s license to seek and force creating desires, embodying individuals with sex upon her denies each girl control over specific identities, and establishing norms whether, when and with whom she has against which they and their behaviours and sexual relations.82 By appreciating the sexual bodies are judged and against which they activity, she understands that she has power police themselves. Women are forced to accept sexual exercise with their husbands as

79 normal because that is how women’s Annie George, “Embodying Identity identities are validated in a particular social Through Heterosexual Sexuality: Newly situation. When wives are battered and raped Married Adolescent Women in India”, in daily, they don’t resist forced sex for they Culture, Health and Sexuality, Sexual and fear that resistance will provoke a more Reproductive Health in South and Southeast severe beating. Since women are associated Asia, vol. 4, no. 2, April-June, 2002, p. with child rearing, keeping house clean or as 215. 80 a homemaker they are not economically Ibid., p. 217. independent. In Russell’s study, ninety 81 Finkelhor and Yllo, op. cit., p. 8. 82 percent of wives stayed with their husbands Mariam Quattra, (et al.), “Forced following a rape because they didn’t have Marriage, Forced Sex: The Perrils of Childhood for Girls”, in Gender and Development [Violence Against Women], vol. 83 Ibid., p. 208. 6, no. 3, Nov. 1998, 1998, p. 32. 84 George, op. cit., p. 214.

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their own economic sources and were the restricting nature of dominant dependent on their husbands for financial constructions of feminity which has been support. Their dependency becomes a accepted and internalized by women as source of economic vulnerability and many being their defining characteristics.88 The wives in this situation are coerced by their reality is that a woman cannot search for a vulnerability into living with objectionable or space of emancipation in coercive sexual abusive husbands.85 On the other hand, experiences. Sangari similarly argues that those who were economically self sufficient transformative agency must be understood walked out of their marriage.86 in a framework of their dialectical relations with determining material, epistemic, Bourdien’s concept of habitués institutional and ideological structures which provides an alternate understanding of social they both reproduce and transform. So “the fabrication of beings. He argues that our truth about agency is that the dividing line identities are never defined simply in terms between compliance and subversion is thin of our individual characteristics but they and the women’s body is often the place us in particular social spaces that we conflicting site of both giving in to, as well come to understand through embodiment, as resisting, domin 89 A 87 ant constructions”. as our place in dialogical actions. Habitués, woman may not always be aware of the or embodied understanding, gives meaning conditions of their construction; hence to practice when it encodes certain cultural agency has both endless possibilities and is beliefs and practices. Women discipline limited. their bodies to encode cultural expectations of idealized feminity and accept unwanted or Since a family is supposed to be full of coercive sex as wanted as they want to harmony and peace, the society finds it become a good wife, which makes them difficult to accept the phenomenon of habitual to their rapes by the husbands. domestic violence. The family can, thus, They discipline their bodies into become a subversive site where violence is heterosexual necessities. In order to make institutionalized and abetted by the state and their marriage work, they just surrender their society, which also uses law to deny the bodies to their husbands and let them do existence of marital rape. The public / whatever they want to do, whether in a private dichotomy in a society, however, coercive and violent way. George has plays out in different ways. On the one named both of these positions as hand, criminal laws construct the family as a compliance and resistance. It is compliance public space which needs protection as in because women participate in enacting the cases of adultery, and on the other hand female subservience in heterosexual in the case of marital rape, the sphere of sexuality. It is resistance because women are family becomes so private that it’s beyond fully aware that they are using their bodies the reach of law. Yet, both the regulations for taking social and economic benefits. of adultery and marital rape share an understanding of marital relationship which On the other hand Rajan argues that this views it as an exclusive site of legitimate cannot be seen as transformation, as sexuality. Paradoxically, privacy continues transformations are always constrained by to, and reinforces, the intimacy and sense of solidarity in family life, while it also nurtures 85 Russell, op. cit., p. 4. 86 Ibid., p. 220. 87 P. Bourdieu, The Logic of Practice, trans. R. Nice, Stanford, Stanford University 88 R.S. Rajan, Real and Imagined Women, Press, 1990; P. Bourdieu, Outline of a London, Routledge, 1993. Theory of Practice, trans. R. Nice, 89 K. Sangari and S. Vaid, Recasting Women: Cambridge, Cambridge University Press, Essays in Colonial History, New Delhi, Kali 1997. for Women, 1989, p. 11. 143

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and protects the very conditions in which days a week. In one month, he has coerced conflict and violence develop.90 sex four to five days. I do not feel like having sex, it becomes painful, but he does Marital Rape: A Violent Experience not stop”.93 Another narrated a similar story: “sometimes my husband forces me to Feminists focus on the violent aspects of Once I was marital rape. Notwithstanding the legal and have sex, which I don’t like. feeling sick; I had burning sensation while societal silences on this subject, marital rape urinating and was feeling giddy. I told him is very much a reality. Several studies have that I didn’t feel like having sex at that time, shown that between ten to fourteen per cent of married women are raped by their but he didn’t listen to me and he forcefully did it. Sometimes he will not listen to any of husbands. In clinical samples of battered my problems. If I try to resist him, he will women, one third to half of the cases is that ask me whom should he go to instead and of marital rape. Sexual assault by one’s 94 spouse accounts for approximately twenty he will get angry, then I just accept it”. 91 five per cent of rapes committed. K.G. This study showed women also suffered Santhya’s pioneering study examined the from physical abuse with unwanted sex. A extent of unwanted sexual experiences woman during her first pregnancy stated: “if among married young women in rural I say no at night, he will do it in the settings in India. It showed that sexual morning, I can’t say no anytime. He will not activity among adolescent girls and young say anything at night; he goes to sleep women in India mostly takes place within turning his back. But when he asks for marriage and almost twenty five per cent of something in the morning and I say no, he adolescent girls aged between fifteen to beats me”.95 Often women accept their nineteen years are married and presumably husband’s demands for sex because they sexually active while fewer than ten per cent want to prevent an argument or punishment. of unmarried young women are reported to Coerced sexual experiences are more be sexually experienced. Marriage does not common in the earlier years of marriages inherently make sex safe, voluntary or and if the wife knows the husband at the pleasurable. Indeed the marriages of ten to time of marriage and he is supportive in fifteen per cent of adolescent brides are nature then the risk of unwanted sex is low.96 consummated by force.92 The results corroborate this assessment because twelve The physical effects of marital rape, percent of married young women reported it is important to note, may include injuries that they frequently experienced unwanted to private organs, lacerations, soreness, sex, while thirty two percent experienced it bruising, torn muscles, fatigue, vomiting, occasionally. Thus forty four percent had broken bones, black eyes, bloody noses, and experienced frequent or occasional sex sometimes even knife wounds. Specific against her will. genealogical consequences of marital rape include miscarriages, still births, bladder This study also illustrated some infections, infertility and the potential examples of sexual coercion. A first time contraction of sexually transmitted disease mother from West Bengal stated: “he forces including HIV.97 Women also suffer me often for sex. We have sex three to four psychological scars because of marital rape which includes anxiety, shock, intense fear, 90 Tondan and Oberoi, op. cit., p. 23. 91 Rath, op. cit. 92 K.G Santhya, (et al.), “Consent and 93 Ibid., p. 128. Coercion: Examining Unwanted Sex 94 Ibid. Among Married Young Women in 95 Ibid. India”, in International Family Planning 96 Ibid., p. 130. Perspectives, vol. 33, no. 3, 2007, p. 125. 97 Mishra and Singh, op. cit.

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depression, suicidal ideas and post traumatic husband who committed rape on his wife is stress, problems in establishing trusting actually using his own property according to relationships, sexual dysfunction and his own wishes.102 emotional pain; they also create negative feelings about themselves.98 In this way, the “Unities” theory sees husband and wife marital rape is as much traumatic as rape is. as one person. Sir William Blackstone Women equally suffer in both the cases. articulated that: “by marriage, the husband and wife are one person in law: that is, the Purva Sen’s research shows that women very being or legal existence of the woman is who complain about sexual abuse in suspended during the marriage, or at least is marriage are aware that this may lead to incorporated and consolidated [into her separation, which may cause further husband]”. This theory encapsulated problems ranging from social ostracism to husband and wife as one but actually this violent attacks, including rape and economic constitutes the husband only.103 destitution. That is why they hesitate in taking step against their husbands even if Third “implied consent theory” led to they rape or experience sexual abuse at their the belief that because a woman gave her husband’s hands.99 Sen’s study revealed that consent to sexual relations with her husband in almost half the cases of forced sex or at the time of marriage, the consent will marital rape, the girl wives had made their remain valid forever. This theory is actually husbands aware of their unwillingness to grounded on the above two theories – the have sex or of pain during sex, but in eighty fake notions of woman as the chattel or percent of these cases the rape continued.100 property of her husband and the unity of the husband and wife on marriage Feminist Voices: Encountering Legal Bases These theories in the contemporary context are legitimized through four Feminists have identified three common law ‘modern’ rationales that may be fictions on which the exemption of marital characterized as relatively more “benign”: rape has been made or accepted: the theory marital privacy; marital reconciliation; fear of of “women as chattel”, “unities” theory, and false allegations and difficult evidentiary “implied consent” theory.101 requirements; the argument that rape within marriage is less severe than outside marriage. The “Women as Chattel” theory The idea of marital privacy suggests that establishes women as a property, in that a relationship between husband and wife is woman was first the property of her father private and personal which should be kept and after marriage became the property of outside legal interference. Marital her husband. With this regard, if a woman relationship depends upon intimacy was merely a property, she is not supposed protected from outside scrutiny and legal to have individual human rights and the interference would break the intimacy that is foundation of marriage.104 Marital

98 reconciliation may be seen as an extension Ibid. of the first notion which stipulates 99 Quattra, op. cit., p. 31. 100 that keeping the spouses “in” and the law The study revealed that girls were even “out” fosters greater mutual respect between consummated before their menstruation the parties and would make their ultimate or the very beginning of menstruation. reconciliation easiest. Third problem That makes it a severely painful and pertains to the fears of false allegations, that bloody affair for her. 101 Suman Saha, “Sleeping with the Enemy? - Recognizing Marital Rape”, 102 Ibid. Women’s Link, vol. 10, no.2, April-June 2004, 103 Ibid. p. 3. 104 Ibid., p. 4. 145

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is with the criminalization of marital rapes it occurrence but marital rape involves a is feared that women would file false charges continuing nightmare for the women. against their husbands and use this right to threaten their husbands. There would also Women can charge her husband under be the problem of lack of evidence because Section 498-A of the IPC, dealing with it is really difficult to find evidence in marital cruelty, to protect themselves against rapes. Finally, marital rape is considered to “perverse sexual conduct by the husband”. be less severe than that outside marriage, or But no standard of this measure or ‘real’ rape is ostensibly considered to be rape interpretation of perversion or unnatural is by a stranger. It is assumed that with available. Is excessive demand for sex marriage a wife provides her individual perverse? Can a husband use force or rights to her husband and so she doesn’t violence to achieve sex? There is no answer lose self-respect in same manner as in case because judiciary and the legislature are 106 of rape by a stranger. So, it should not be silent on these issues. criminalized.105 Some feminists have suggested Feminists reveal the fallacy of all certain steps to end these unwanted or these arguments to make a case for coerced sexual experiences. These include criminalizing marital rape. First, it is argued increasing the years of schooling for that if one views Article 14 in our girls. Education will help girls master better constitutional paradigm then marital privacy resources and enhance their ability to deal cannot be considered as an absolute right, in with the outside world, seek an equitable which case no crimes between husband and relationship with her husband. This would wife can be prosecutable. If domestic also help her become permanently violence can be penalized under law, which independent because it’s well proven that means, that a husband is not justified in economic pressures are directly related to 107 beating his wife, he cannot also justify raping sexual coercion. his wife under the guise of a right to privacy. An excellent study conducted by Likewise on the issue of false allegations, it Santhya also shows that government’s sexual can be argued that such fears are present in and reproductive health programmes seeking other crimes also, then why should there be to protect women from HIV infection an exemption made only in the case of cannot succeed without mitigating or ending marital rape? The difficulty of collecting the risk of coercive or unwanted sex for a evidence also applies to other criminal acts; wife that is because sexual coercion within so, law cannot choose to ignore injurious marriage has adverse effects on sexual and acts such as marital rape merely because they reproductive health.108 are difficult to prove. In fact, this is true for most sexual offences, which take place in the Women themselves don’t talk about private domain. The reconciliation theory is their sexual experiences because they feel ridiculous as it denies the wife the protection inhibited for discussing them owing to their of the criminal laws. After being raped by socialization and cultural beliefs. Feminists her husband, a wife is unlikely to consider underline the need for openly discussing the the probability of marital reconciliation. issue of marital rape. In fact they lack even Rape is a heinous crime irrespective of who the vocabulary for discussing sexual violence perpetrates it. The notion that marriage is a within marriage, which in turn, hinders their perpetual license for assuming women’s ability to distinguish husband from consent is wrong. On the contrary, rape by a rapists. Many do not even acknowledge the stranger may be a devastating one-time

106 Rath, op. cit. 107 Santhya, op. cit., p. 130. 105 Ibid. 108 Ibid.

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phenomenon of rape within marriage. This as presupposed by patriarchal society111. She attitudinal invisibility reinforces the statistical comes up with a new writing practice invisibility of the most prevalent form of (‘l’écriture feminine) to deconstruct fixed rape, that is, marital rape, which is why there categories of sexual identities and in these is hardly any survey done on marital rape in terms deconstructs the masculine fixed India. In Russell’s study, only seven percent sexual behavior which expects women to act of women responded affirmatively when in certain fixed ways. She wants women to asked directly if they had been raped. write because when they write they actually Another six percent acknowledged incidents speak about their bodies. Another Post- of forced sex but changed their language and Structuralist, Julia Kristeva has adopted an explained it in other ways by saying “it was emancipator path for women and drawing almost like rape”, or “he pinned me down upon Derrida argues that due to endless like it was rape”; or it was just like a rape differences of meaning, language is dynamic except I was on (my own) bed”.109 and if subject is the product of language, which is dynamic, then the subject is a So women themselves don’t dynamic process as well. She brings realize that something wrong has happened ‘semiotic’ and ‘symbolic’ as central to her to them and the reason being absence of idea of subjectivity and argues that though language by which they can define their the ‘semiotic’ that is pre-linguistic stage emotions in the law. Indian Judicial grammar where differences do not take place, remains does not possess women’s voice, emotions not that much important as ‘symbolic’ and their living. The law takes steps for captures but ‘semiotic’ is important in the abolishing rape because it wants to save sense that it does not incorporate the virginity of virgin girl for the sake of hierarchy which brings inequality112. The legitimate property owner that is husband paper drawing upon these understandings but manipulatively sidelines those women argues that women should write their own who are not virgin — married women and legal language on rape within marriage. They prostitutes. The mere difference is that a should speak, shout, debate and write about married woman is there to be raped by one the rape within marriage which is not ‘just and only legitimate husband and a prostitute sex’ for them because when they speak they is categorized as a legitimate rape victim by actually speak about their bodies, for their different men. So women must have their bodies. The need is to make their own new own vocabulary, their own emotions to language and vocabularies not biding by speak and write not in the context of men masculine social cultural and legal contexts but in their own context or in the context of but in the context of their own spaces. First their own material and linguistic space of a woman should herself have the courage to bodily matter as has been emphasized by speak with new vocabulary that she has been Luce Irigaray so that women’s body could be raped by her husband and should create a 110 incorporated in the linguistic discourses . judicial grammar to criminalize rape within In the same vein Helen Cixous asks women marriage. to write more and bring women to writings Conclusion as well so that their bodies could write and speak their own anti – linear and cynical behavior which is not bounded or structured 111 Cixous, H. “ The Laugh of the Medusa”, trans. K. and P. Cohen, in E. Marks and I. de Courtivron in New French 109 Russell, op. cit., p. 53. Feminisms Brighton: Harvester,1981(a), 110 Luce Irigaray, This Sex Which Is Not One. pp. 245-64. Ithaca, NY: Cornell UP, 1985 and Luce 112 Kristeva, J. (1986) ‘A Question of Irigaray, Speculum of the Other Woman, Subjectivity. Interview with S. Sellers’, in Ithaca, NY: Cornell Univ., 1989. Women’s Review, Vol.12, pp. 19-22. 147

Megha Criminalizing Rape Within Marriage

Rape is an offence against the woman, violating her dignity and self respect and even when it occurs within the four walls of the home, it reduces the wife to a sexual objectification for men’s gratification. To make the woman realize her own being, the law should seek to protect the right of every woman to choose whether to have sexual intercourse or not with her husband and evolve a new, more suitable judicial grammar for this purpose. There is also a need to educate the masses about this crime, as the real objectives of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is unquestionable. However, it is important to realize that the first step would be effective only if the law takes some appropriate action about it otherwise women will always have to carry the label of “second sex”. Therefore, there is a need to criminalize marital rape and moreover the law should have substantive equality approach towards criminalizing rape within marriage because this is the discrimination inherent in the failure to criminalize marital rape. This substantive approach would expose the root sources of discrimination and would facilitate reform efforts to address the cause of the problem rather than the symptoms of the problem so that the contexts — socio- cultural, political and legal — in which the roots of inequality generates and further reinforces the grounds for legitimizing rape of a wife by husband within marriage could be analysed and examined. The paper emphasises the need for the law to adopt substantive equality approach by problematizing reasons for rape within marriage in socio- cultural and political contexts with women’s own vocabulary.

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Legislative Representation and Governability in Brazil: Does Brazilian Democracy Represent its Social Plurality?

Lívia DE SOUZA LIMA1, São Paulo Foundation School of Sociology and Politics Thiago Henrique DESENZI2, São Paulo Foundation School of Sociology and Politics

Abstract

emocracy is, ideally, an equality fostering tool in face of different demands present in any given society and that currently is put in practice by a representative democratic model. Nevertheless, several D modern thinkers are pointing to an unmeasured scale of interests within the representation spheres, in which the most powerful society’s sectors overcome the less influential social and economical groups, turning democratic representation into an uneven scheme. By having this in mind, this reflection is aimed to make an analysis of the Brazilian democratic representation model, specifically in relation to its majoritarian government composition, that, in this country, is part of a unique legislative model named as “Coalition Presidentialism”. At the composition idealized by the Brazilian National Constitution, the federal parliamentary ministers have the responsibility for the formulation of laws as well as monitoring the executive power in consonance with the will of the society’s sectors that has got them elected by the voting system. The conflict is established though, when the actual governmental practices leave aside the constitutional principle of a plural representation in consequence of economic and power interests that act independently from the diverse interests and needs of other groups belonging to the Brazilian society. It can be argued that the establishment of governmental practices better aligned to the concept of global justice, in the Brazilian case, can be achieved by a better quality democracy, through adequate governance mechanisms and plural representation practices that are capable of attending the distinct demands of diverse society layers. Thus, this article is aimed to present how the Brazilian democratic representation works, exploring its conflicts and deployments and mainly its divergences in relation to the democratic morality that presupposes the existence of gradated ways to the reaching of higher social and political equality levels, closer to the general global justice ideas.

Keywords: Quality of Democracy, Brazilian Political Culture, Democratic Representation and Participation

1 Sociology and Politics Student at the São Paulo Foundation School of Sociology and Politics. Visiting Student at Napier University – Edinburgh – Scotland - email: [email protected] Scholarship Student- CNPQ Brazil 2 Sociology and Politics Student at the São Paulo Foundation School of Sociology and Politics. Visiting Student at University of Helsinki – Helsinki – Finland - email: [email protected] - Scholarship Student- CNPQ Brazil 149

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Introduction politician renounced his post as Senate President, for running the risk of having his esides the pre carnival euphoria political rights revoked4. in 2013, one specific chapter of The damage to the government's the Brazilian National Congress B image is clear, and can be seen in repulsions “soap opera” was also capable to “entertain” in the media, digital networks and in society the country. In the beginning of February of in general5. The party leader of the executive this same year, Mr. Renan Calheiros has and the entire coalition base “pays the price” been elected president of the Federal Senate, of these divergent interests in this political being supposed to remain on the post for a chessboard called “Coalition biannual mandate. Presidentialism”. Through this episode, we It caused a big fuzz in the national can have a clue of how the Legislative news and what was being exposed by several Representation and Governability interrelate newspapers and political commentators is in the Brazilian democratic system. that this election is a result of pre accorded Aiming to clarify the reasons that agreements in between the situation party, lead and make possible this sort of political its allies and the opposition, accounting for arrangements, the discussion will be the exchange of government positions, developed towards the democratic values in sketchy favours and political advantages3. the contemporary academy discussion; Part of this practice should be secondly the Brazilian democratic normal for a political system known for the representation model and its nuances will be formation of such polarized coalitions. But, discussed. Further on, it will be verified the what makes this chapter deterring is the fact connections and disconnections among the that the just elected Senator is a politician governability and the representation, trying that carries over his shoulders three to verify if the society plurality is represented processes on the Supreme Court, in which he is under investigation for corruption 4 practices. It should not be considered as “He was accused of paying personal expenses (the pension of a daughter out of trivial the fact that in the year 2007, the same wedlock) with funds from a lobbyist. To prove the money received, Renan had fake notes regarding the purchase of cattle” – our 3 See the editorial: “Renan gives positions, translation (ALVARES&BRITO, 2013) consolidating support in the Senate and 5 More than 1,5 million digital signatures must win by a wide margin” – our collected in less than ten days asking for the translation (BERGAMASCO&LOPES, Senate's president impeachment in the 2013) www.avaaz.org.

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in this system, and within this dynamics, democracies. In that time, all public issues delineate perceptions over the desirable ways should be considered by the “Greek for the Brazilian democracy. citizens”, which had to be gathered in order to discuss and get to agreements in which the achieving of a common good was the Democracy As A Polical Regime And main goal. As much as the original Social Relation democracy in Greece promoted direct Despite the differences in the ways political participation, it failed in promoting democracy was put in practice in its very equality by having a very limited concept of beginning and the transformations occurred citizenship. Thus, just a few part of the throughout the times, there is a general population could enjoy political liberty in its definition that can be understood as the very pure sense; consequently political equality structure of a Democracy: that in democratic was not fully achieved. states, people are sovereign. Thus, Democracy is no longer performed democracy means literally rule by the people by direct civic participation, but is rather (DAHL, 1989). Nevertheless, a democracy exercised nowadays by representative could not be identified as such only by the devices. Robert Dahl argues that completion of this organizational political representation became accepted as a solution process. Thus, the ‘rule by the people’ that eliminated the ancient limits on the size activity should be accompanied by its of democratic states and transformed capacity to promote ‘freedom and equality’, democracy from a doctrine suitable only for being these the basic principles by which a small and rapidly vanishing city-states to one political organization of a nation can be applicable to the large nation-states of the named and recognized as a Democracy. modern age (DAHL, 1989, p.29). Indeed, In as much as the modern representation is a suitable solution to make democratic format is inspired by ancient governable the modern large states, in terms Greece, there are many differences from the of practical organization of the political original practice that has accompanied the process. But, one should bear in mind that, sets of political, social, cultural and democratic representation can only be economic transformations that has led the understood as such if the basic principles of world to what it is today. The first and liberty and equality are involved in perhaps most important difference is on democracy making. how the decision-making process was In this sense, a democracy is conducted in the original Greek recognized and evaluated by its capacity to

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pursuit liberty and equality in a broader and equality of citizens through the sense, both social and political. Is it legitimate and correct functioning of its impossible, asks Touraine (1997), to institutions and mechanisms”. Robert Dahl conceive a democracy that protects the (1989) argues that the institutions are the freedom of opinion and choice at the same result of the transformation of the modern time that combats inequality? By intriguing democracies into the current representative his reader with this question, the author is model. For him, this new set of institutions arguing that these elements are indissociable form together what is commonly referred to if there is the will to evaluate the quality of a as ‘democracy’. In summary, to measure the democracy, exposing the need to work with quality of a democracy is to analyse to what these elements together. extent is working the connexion in between It is not an easy task, mainly taking the representation institution, no matter in into consideration that both principles may what level, and the population, according to vary according to the political and social the basic principles and values of a cultures associated to any given nation-state. democracy. But as democracy is not a static object, but In addition to this general yet an open oeuvre in constant expansion, assertion, Morlino (2009) specifies the there is the possibility to watch over it, qualities to be considered for a democratic understand its functioning and relations, and evaluation and divides them into three by finding flaws and potentials, be able to dimensions: procedure, content or design better ways to do it. What has been substantive and result. The procedural defined as the study of the democratic dimension is composed by mechanisms that quality accounts for the important normative confer effectiveness and legitimacy to the conceptions of a democracy, offering some institutions, and are, more specifically (i)rule analytic tools for exploring and detecting of law; (ii) electoral accountability; (iii) inter- democratic quality in various countries institutional accountability; (iv)participation; (MORLINO, 2009). (v) competition. The second dimension, in Morlino’s work offers an Morlino’s framework, is related to the nature interesting and complete framework of a democracy, and accounts for political reflecting on the qualities to be presented by freedom and political, social and economic a democracy that shall to be defined as good. equality. Finally, the result, as the last Overall, the author considers that a good dimension, is related to responsiveness. The democracy is the one that presents “a stable procedural dimensions are concrete and institutional structure that realizes the liberty moreover, devices for the realization of the

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substantive democratic dimensions. As administration” and the organization of the argued, the modern democratic scenario state within the bureaucratic apparatus is a presupposes the existence of institutions “solution to democratic credibility”. In this responsible for the organization of life in sense, the procedural dimensions for societies. Nevertheless, despite any political, evaluating and measuring democratic quality social or even economic ideologies, the core are a suitable direction to the achievement of definition of a democracy keeps being rule legitimacy and credibility in modern by the people, and not rule by institutions. democracies. As so, a democratic institution must act in In this sense, legitimacy is accordance to the people’s wills and rights, connected to responsiveness, thus, the and the exposed procedural dimensions citizens will respond satisfactorily to the offer an orientation guidance to make the institutional capacity of legitimately bringing power delegation, from the people to the off the democratic substantive dimensions, institutions, legitimate. according to the local reality. Having this in Legitimacy, argues Pierre mind is interesting to understand what Rosanvallon (2011), is an invisible institution legitimacy stands for. Rosanvallon (2011) and establishes a firm foundation for the dissects legitimacy in three parts, so as to relation between the governing and the know, impartiality, reflexivity and proximity. governed. It is well known that the Those elements are essential in modern representative system is signified by the vote, political representation due to the fact that as if the general will is reflected by election democracy has the rule by the people as a results. It seems that the contemporary prerogative, but the very significance of the political debate is giving great attention to people has changed. For this author, “the the lower voter turnouts presented even by people can no longer be apprehended as a consolidated democracies and this homogeneous mass” and the interests of the perception is generally connected to greatest number is not automatic identified consequences such as lack of trust in as general will. political institutions or in politics itself. But, Although this reflection appoints as much as universal suffrage is an essential for the necessity of several other organ in the functioning of the democratic participation mechanisms in a democracy in body, it cannot be the solely argument in order to achieve a legitimacy status, universal detecting a democracy failure or crisis. For suffrage cannot be taken for granted, Rosanvallon, democracy has a “dual especially when the history for the right to foundation: universal suffrage and public vote is traced. Universal suffrage is still

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considered the major democratic symbol and 2011, p.57 - our translation). expresses the notion of generality among men since every citizen, in a nation, has the Hence the right to vote is the right to vote. Rosanvallon (2011), in his utmost political equality representative that latest work on equality, argues that the also contains, within itself, the basic citizen is presented as a pure individual, elements for social equality, by considering detached from any specificity. When the all the men as similar. As a procedural right to vote is then conferred to every dimension democratic mechanism, voting is citizen, an equality measure is subsumed. In the basic pillar for political participation. his words: But, other guarantees are necessary for the existence of a free and equal political Within the universal suffrage exercise, process. Robert Dahl (1971) suggests that every individual is the democratic political process must make deposed from its own determinations room for the people to formulate, signify and affiliations. This and have their preferences weighed equally. abstraction is the quality that Besides voting, the author argues that those constitutes the actions are possible by the existence of citizen socially and helps to develop the freedom of expression and to form and join political equality organizations, right for party competition, idea. And this is what makes this alternative sources of information, free equality format, eligibility for public office, free and fair among the individuals, both elections, and institutions for making radical and policies depend on votes and other exemplar. It is disengaged from all expressions of preference. As much as these the distinctions that elements are part of the procedural are ordinarily imposed to ordinate democratic dimensions, they are a more and classify men. explicit definition of the political tools The great sage and the simplest spirit, designed acknowledging the importance of the rich and the both freedom and equality. By these poor, are considered as equally able to important points, it can be noticed that think about the voting and what is encompassed by it, as common good and to trace a separation much as it is part of the nature of a line between justice democracy, must be invigorated by other and injustice (ROSANVALLON, mechanisms.

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In Morlino’s analysis (2009), when Accountability evaluation has a voting and representation is involved, then direct impact to the citizen satisfaction accountability “becomes a truly central within their government. Thus, dimension in so much as it grants citizens responsiveness becomes a harder task in the and civil society in general an effective current social scenario. Norris (1999) argues means of control over political institutions”. that better levels of education and greater In other words, both electoral and inter- information accessibility has resulted on the institutional accountability offers the citizens rise of more “critical citizens” that can a chance to keep a watch in how their observe the current government practices, societies are being led, and act over any sort criticize them and claim for better ways of of dissatisfaction they might have. Those performing a democratic form of rule. This mechanisms widen out the participation same group of individuals are also more realm, and assure that people are aware of these system and its functionalities empowered over their nations in and outside for regulating social and political institutions. the ballots. Accountability apparatus in In addition, as much as equality tries to set Rosanvallon (2008) is also seen as a counter- up a world of similar people in nature, there democracy device. is also the exaltation of the differences, and a Democracy, in having freedom as a claim for the accommodation of diversity. value, has suspicion as a presupposition. In This creates a demand for more plural institutionalizing suspicion, with systems of governments that are able to respond to the check and balances and transparency higher variety of groups, associations and measures, for example, the modern movements that want and need to have a say democracies aims to protect the individuals and place in society. from the encroachments of public authority. Nevertheless, as plural as a Moreover, the citizens must have the chance government can be, it is just about to make sure that the representative impossible to have a perfect responsiveness institutions are acting in favour of a equation. For Powel (2004), there is a common good, by delivering appropriate contradiction in between responsiveness and services, and designing good policies around interests representation and thus, the only the social justice ideal. In other words, it is a tentative solution is to understand that total means to guarantee, or at least try to responsiveness is not the only public virtue. guarantee, that the government is acting As intriguing and interesting this assertion towards the population interests and not its can be, is not sufficient if an evaluation of own. responsiveness and interests representation

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is to be conducted. So, considering that each shake and modified the face of the democracy has its sets of social, political, earth. But this cultural and economic particularities, the political people that impose themselves question to bear in mind for a critical more strongly have analysis of any democracy is: whose and to left a less social heritage. The which interests the government is more political citizenship responsive? This framework will allow the progresses at the same time that the discussion of what are the instruments and social citizenship resources that each different social group regresses (ROSANVALLON, has to make a pressure on the government 2011, p.11 – our and thus achieve more benefits to its own translation)

interest group. These evaluations must Still in Rosanvallon (2008), there is always consider, at first hand, liberty and a current sense that this is a great time for equality principles, and it can be almost political freedom with the spreading of considered as a moral judgement of a citizen counter-democracy practices by democracy capacity to work in a balanced which people have been acting as the way. overseers of democracy. It becomes evident Democracy then, is confronted that freedom is currently a strong and visible with the challenge of affirming its vitality as value within the democratic world. But the a regime at the same time that is reaffirmed simultaneous intensification of the as a form to organize the social. This inequalities presents itself as a rupture from challenge is especially controversial in an age the democratic values that should be walking where the citizens keep enlarging their forms hand in hand. The latest Oxfam report 6 of intervention and exercise more actively headlines that the annual income of the their surveillance capacities. For Pierre richest 100 people in the world is enough to Rosanvallon, these more critical and active end global poverty four times over. The citizens are determined to keep alive the report asserts that this huge economical gap democratic ideal: “is not only unethical but also economically It is the spirit of an inefficient, politically corrosive, socially era. The aspirations divisive and environmentally destructive. for freedom enlargement and for Thus, for Pierre Rosanvallon (2008), equality the instauration of powers submitted to the general will have 6 See the editorial: “The cost of inequality: made the despots how wealth and income extremes hurt us all” (OXFAM, 2013)

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is in crisis, not just because it is so evident, dignity of all is guaranteed (Rosanvallon, but mainly for the general acceptance of it. 2011). Equality itself is not easy to define. Having a more clear idea of what What is the measure for equality? This equality means and represents helps to pave question is aimed to identify an issue, a the way for its achievement, or at least, pave problem. This measure means a question of the way towards it. Pierre Rosanvallon space (income, wealth, happiness, life (2006) understands that it should be a opportunities, satisfaction of necessities, democratic perspective to work in society freedom) from which different persons can itself. In Michael Foucault (1997) this be compared in relation to the hope of an concept is defined as governing the social, equal treatment to all the people, despite the creating civility and fundamentally differences that cross their lives and their constructing a social unity. Hence, the art of forms of existence. It is a field made of a government, cannot be understood only as a group of value references that are also power submission mechanism, but as cognitive and political references. And from practice in defence of society. these references the social life complications What Rosanvallon suggests, is a and mistakes are, or can be, described and democratic approach that might lead to a measured, figured and evaluated as problems communion of the ideals of democracy with to be repaired (Telles, 2004). In this sense, those of socialism: equality becomes a social relation, and not a Historically, the first product that can be arithmetically evaluated have above all been defined in and accounted. procedural terms, The term equality should be while the second have been thought identified with emancipation, autonomy and about in a with the consequent constitution of a world substantive fashion. If politics is of similar people that live in pairs and do not conceived, however, know the levels that separate or humiliate as the work of society itself, then them. The critic of economic inequality is the experimentation directed to the creation of a society where with differences that makes it up is also the differences in between the individuals its heart. Substance are not generating exploitation, domination and procedure blend, in the end, to or exclusion. In this sense, a society without make democratic classes is the one by which work is not progress connect with the deepening submitted to predator powers and that the of the exigency for

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social justice everyone in the process, helping to construct (ROSANVALLON, the common good in a substantive manner.7 2006, p.251). What has been reflected and The equal society must be thought exposed here is that, democracy as a political under three orders: singularity, reciprocity regime has its intrinsic legitimacy and communality. Singularity implicates the mechanisms that by having its dimensions freedom that each individual has of observed can deliver credible procedures manifesting itself according to personal and devices, to the achievement of the rule preferences and that each human being is by the people. At the same time, the unique. Governing the social, in this sense, substantive notions, being the core accounts the existence of policies that give democratic principles, has to be considered the individuals the means to express their in every single aspect if the rule by the singularities. Among it could be mentioned people is to be exercised according to the anti-discrimination measures, genre equality values and objectives that generated it. and sexual option liberty. Reciprocity is a Finally, democracy as an alive body, has the dimension sensible to the rights and duties potential to evolve by observing the local of all members of a state, and also implicates and global challenges and rebuild itself, on just wealth distribution. Moreover, it leading towards the construction of justice expresses itself with a negative reaction to as many people and nations as possible. towards certain behaviours where any

individual might take irregular profit from Democratic Political Representation In the system, being also a denial to the Brazil constitution of privileges directed to a

specific class of individuals. Communality, The main goal in this section is to related to the citizen notion, is the evidence delineate the Brazilian political system that the individuals are members of a mechanics, defined originally under the community and protected by the laws concept of “Coalition Presidentialism” a pertained to it. The group of laws accounts for civil and social rights of an individual in its relation to the other members of a society

or community (ROSANVALLON, 2011). In 7 Pierre Rosanvallon (2011), in La Société des égaux, retraces the ideologies and struggles summary, governing the social, in an equality that helped to define the concept and framework, is create the ways for the orientation for equality. For a better understanding of all the propositions made exposed orders to happen, and involve by the author regarding the equality orders, refer to IV Chapter: Le Grand Retournement.

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term coined by Sérgio Abranches8. Further text, and the disagreement can be verified in studies comproved the original attribution of the plebiscite predicted in this same final this term, due to this peculiar Brazilian text, performed five years after the format, basing the academic literature that in promulgation of the 88´s Brazilian general accepts and uses this term, thus Constitution, that transferred to the people establishing Brazil as a country ruled by an the final responsibility in chosen the national unique political model in the democratic government system9. world (FIGUEIREDO&LIMONGI,2004; The result of this clash and the MOISES,2011). final Constitutional text made possible to According to the original author of emerge mixed government structures in the this term (2012), this concept was conceived Brazilian political system and in this during the Constitutional debates in 1988, in background arose the concept of “Coalition consequence of the paths these debates were Presidentialism”. taking. These debates were guiding to a Thus the Brazilian political system perception of an inflexible government was conceived under mixed characteristics10 model, unable to deal with political crisis in from Presidentialism (United States of face of interests’ polarization among America model) and Parliamentarism executive and legislative, and the (European Model), in other words, it institutional devices contained in the gathered the concepts of Federation and premises of the new Constitution. Presidentialist republic and the concepts of The 1998 Constitutional debates´ multiparty system, with proportional revealed the shock of different political representation vote. thoughts, in several issues, but the present This mixture brought the polarity discussion has a focus on the shock between among both systems of government supporters of Parliamentary Government (Parliamentarism and Presidentialism) to the against Presidentialist Government. The Brazilian model, and in addition, left this debate´s polarization can be perceived in the polarity even stronger by providing two Constitutional devices contained in the final different sorts of representatives, between executive power and legislative power.

8 “Brazil is the only country which, as well as combining proportionality, a multisystem 9 The plebiscite performed in 21/04/1993 and an 'imperial Presidentialism', organizes had Presidentialism system as winner with the Executive based on large coalitions. I 55,58% of vote. Data available at will call this peculiar trait of the concrete access in alternative, 'coalition Presidentialism'” 02/02/13 (ABRANCHES, 1988) 10 (ABRANCHES,2012); (SANTOS,2004). 159

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In one hand the Congress members and bargain with other political parties, (Federal Deputies and Senators) are elected seeking to obtain the support of Brazilian by each State of the Federation, having a Congress majority (SANTOS,2004). Bargain fixed number of seats for each one of the is the buzzword at the government base state independent of number of inhabitants composition’s negotiations and the executive and geographic dimensions of them. This distribution of Ministerial, Secretarial, Public specific election is deeply influenced by local Companies posts and so on, is used as a interests, due to the necessity of resources to bargain chip with other parties, in the effort pay the costs of a political campaign11. It to build government support basis. reaffirms local elites responsiveness at the Thereby, unlike the original related Congress and guide toward policies political instability theories that pointed out that seek to allege pre-established interests. several factors that could take the On the other hand the executive power is government towards an operative inertia due elected by the totality of Brazilian citizens to conflicts of interest in between executive defining the elections by considering the and legislative, this consolidated political total amount of votes in absolute numbers. system guarantees the executive capacity to However this so called majority actually set up its own agenda, obtaining approval at represents mainly the urban votes, originated the house of the parliament, and besides, from big cities and metropolitan areas of the place the executive in a comfortable and country, being then a reflection of dominant position over the parliament reformative interests that desire structural (MOISES,2011). changes in the society dynamics, unlike the Several critics that commented this parliament, that are oriented for its relationship between executive and maintenance. legislative accused that actually, the Nevertheless, the question that government, in its effort to achieve remains is the same one that worried governability, is not properly representing academics by the time of 88´s Constitution the society´s interests. Unlike the individual promulgation: How will this government representation of people’s will by their deal with this interests’ polarity in order to elected representatives, presupposed by the attain governability? Brazilian Constitution12, this mechanic sets a

The Executive power, to achieve governability and implement his government 12 “Art. 45. The Congress is composed of representatives of the people, elected by the program, uses different forms of persuasion proportional system in each state, in each Territory and the Federal District” – our 11 (VIANNA,2012); (ABRANCHES, 2012) translation.

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different sort of representativity, coalition disables any individual effort in the characterized by the representatives legislative, having available not just the aggregation in two different blocks, the coalition agreements among its basis partner government and the opposition, being the parties, but also by having different latter a force extremely weakened by institutional tools that can block any institutional devices available in the divergent interests in the congress. Constitution for guaranteeing One of the Coalition “governability”13. Presidentialism main characteristics is one of Instead of a truly democratic the European Parliamentary System basis, representativeness, these party negotiations the party discipline in congress voting for governmental base arrangements, leads (MORAES,2001; MOISES,2011; the “Coalition Presidentialism” to a SANTOS,2004). In the broad study movement of democratic “delegation” prepared by Figueiredo e Limongi (2004, (SANTOS, 2004). And both words have our translation), this tendency can be thus completely different meanings and verified: “Since the promulgation of the objectives towards public issues. Besides, the Constitution, MPs affiliated to political legislative capacity to formulate laws and parties that compose the government basis, accountability over the executive actions is voted with the government in 90% of the hampered. The presidential government consultations. Variations by government and

party are small.” This finding underpins the 13 Is important to keep in mind a brief sum theory of the lack of individual and up of the issues that concerned the Constitutional Assembly toward this fragmented action in the congress shown conception of “governability”. According to before in the beginning of this article. Moises (2012) the problems of decisional blockade due to conflicts among Executive In addition, as stated before, the and Legislative between 1946 and 1964, the minority in the congress, the opposition, is last democratic experience period in Brazil before the Military Government, were the not capable to block any government basis cause of several government crisis that interests by voting (LIMONGI, 2006), due happened in almost all the governments in this specific period. And during the to the inexistence of institutional Constitutional debates, not Just the mechanisms available for them. In other representatives but also the media were words, the majority in the congress sets the concerned in how to solve “problems of efficiency and effectiveness” in the agenda. government, and searching for a way out of these crisis the final Constitutional text In this scenario the only option to predicted some institutional devices that influence the government agenda and to could manage this constitutional shocks favoring the executive power over the propose new initiatives or changes in legislative. 161

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government politics is to be part of the the resources available, toward projects of government basis, or to wait the next term their interest. trying to become the government, rather This individual orientation could than opposition. Another aspect important generate clashes with the coalition action, to underline is that the legislative members, but as shown by Argelina Figueiredo and ever since the political campaign, depended Fernando Limongi (2005), the executive has more of their individual efforts and actions the attribution to liquidate or not the to become elected than to the party projects in queue waiting for budget actions14. And once elected, if they seek availability. This legal proposition sets the power maintenance and reelection, they necessity for setting up and forward projects must engage in political actions directed to aligned to the presidential program agenda, the groups that got them elected (VIANNA, otherwise they will not be put in practice, 2012). thus legislative body individual political Often, this specific electorate is interests will not be accomplished. sensitive in political campaigns to impactant Above to control to execute projects, such as bridges, roads, new schools individual budget amendments, as exposed and other public local ameliorations. And before, the executive has other institutional the regional representatives negotiate inside mechanisms that guarantee the governability the government how to achieve their goals, over the legislative, such as possibilities to bringing federal resources to political set an urgency tag over his projects (directly projects that are for the sake of their specific affecting the commission’s work in projects agenda and electorate. To accomplish this analysis), or to edit a law in a provisional individual necessity, the legislative members form without the immediate legislative have available the possibility of budget participation or its approval16. amendments15, with a common value fixed Inside this dynamics is not for all them during each year of their surprising the conception accepted by the mandate, allowing them to act as the largest part of the academic literature on the executive power, choosing the destination of issue17, that in Brazil the executive exercises

two functions, being also the country’s main 14 According to Jairo Nicolau (2002, p.224): legislator. As a result, who sets the agenda “The frequencies suggest the predominance of mandates customization: Members attributed a weight of 73% on individual 16 To go further in this subject consult performance and 27% to the party label” – (ALMEIDA&SANTOS, 2011). our translation 17 (MORAES,2001; MOISES,2011; 15 To go further in this subject consult SANTOS,2004; FIGUEIREDO& (FIGUEIREDO&LIMONGI, 2005). LIMONGI, 2004)

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based on its own interests is the executive here, about the fact that the executive votes power, and of course the coalition parties are originated from big urban centers and influence it during negotiations, being metropolitan areas mainly. These votes can undergone by some restrictions and be signified as a desire for reformist policies, impositions over their specific goals and and are encompassed by the search for the policies, but through the bargain application of a clearer political program and mechanisms, the executive agenda can the interests in the accomplishment of the outweigh the coalition interests. agenda promised during the political But even with this executive campaign. supremacy, is an illusion to think that the Thereby in order to keep the power executive can grasp the majority interests, as and to guarantee the reelection, the elected we can verify by Fernando Henrique President must put in practice his own Cardoso words, Brazilian President in government agenda, even being somehow between 1995 – 2002: conflicting with the legislative interests, as stated before, characterized as more To accomplish what he promised his conservative. voters (the Right here there is another shock president) needs the Congress. And to of interests, between the coalition parties’ get a majority in political agenda and the President party. Congress, alliances must be made These parties in the government basis play a because the heterogeneity of the “regulator” role, because even with the Federation and the bargain of political positions, they have to peculiarities of the engage in actions that could be accepted by Brazilian proportional their electorate, in other words, they will try representation to moderate the reformist action of the system produce a fragmented party executive, to defend their own political framework, in agenda, at the same time that they will search which no single party holds a for positions and power inside the coalition majority (quote MOISES, 2012, composition. p.11) As pointed by Abranches (2012),

One point to be discussed over this this dynamics are natural in the democratic specific statement is a reflection about which regime, due to its central characteristic of voters he is speaking of. In this sense, it can seeking maintenance and power preservation be reminded what has been already exposed instead of big structural changes. For this

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author, it was always a conflict area for p.32 - our translation) democracies in developing, that need structural and fast changes, and this conflict Be “reactive” is one of the main can be clearly visualized in the Brazilian characteristics of the Brazilian legislative, agenda as well. being one of the reasons of their small This power conflict results in contribution in relevant public policies. Its endless negotiations among Legislative and contribution with proposals is almost Executive powers, having the Executive as insignificant in absolute numbers and also in the leader setting and directing the political relative numbers related to their main agenda. At the same time this is not just a attribution (laws and accountability). And counter-power relation, is an eternal power even in the executive proposal analysis, the struggle against and with all the other legislative is limited to small technical parties, in a continuous relation of rejection adjustments, without any substantial changes and necessity. The question to answer at this in it. time is: How does the executive set its José Álvaro Moisés in order to political agenda? prove this statement did a broad study over To answer this question it is the Congress dynamics toward proposals’ essential to expose what the term “reactive analyses and approvals, comproving that the legislative” stands for: legislative ability in the production of laws is quite low compared to the executive, A reactive legislative is that one who demonstrating once again how the executive delegates the outweigh the legislative in this specific initiative of the most important Government attribution. According to his legal propositions to study: the Executive. Setting the agenda, …of the total of as well as the 2,701 proposals that priorities regarding were brought to the the order of plenary of the consideration of Chamber of bills, is transferred Deputies between to the government 1995 and 2006, and negotiated later involving the with MPs who lead production of laws the legislative and policy majority party or decisions, 85,50% coalition. The (2,310) were Brazilian Legislative originated by the is reactive executive and only (SANTOS, 2004, 14,50% (391) by the

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legislative… instead of long term policies concerned with (MOISÉS, 2011, “State”. p.16 - our translation) Regarding the development of this

This clearly can point out to a section, to put the executive agenda in reversal of roles, when the executive takes practice is the main goal of the Government, the responsibility to legislate. It changes all therefore to guarantee a good government is the government dynamics, due to the double a central condition toward the power attribution, of legislating and executing, maintenance in the reelection and in the according to its own political agenda and others power projects of this specific party. interests, breaking the democratic classical During all the explanation in this conception of power division and balance. section, it could be verified how blur is this Supporting this dynamics of individual representation in the Congress, executive´ primacy, this study also showed being highly influenced by antagonistic 19 that proposals connected with themes interests and characters. The Constitutional towards the electorate expectations took premise of people´s sovereignty and more time to be approved in the Congress representativity is being filtered by other sort than proposals concerned with governability of interests, in face of the institutional design interests18. of the Brazilian political system. This roundly demonstrates that the If this system is not suited to governability interests bare advantage in society’s expectations or to the democratic relation to the state policies, once the concept of individual representation, the category of proposals concerned with fault cannot be leaned over the actors in this governability were treated with more dynamic. They are playing a game of political urgency than structural State policies, in survival in this chessboard conceived by the other words, reflects the primacy of short 88´s Brazilian Constitution, and using the term policies concerned with “Government” words of Vianna (2012): “Blame the game, not the players”.

18 “…the projects that took more time to be approved were precisely the ones referred to Governability Against Plural the accountability over the executive (1717.7 Representation days), then come the economy (1405.2) and health (1262.4), whereas in the case of executive projects of direct interest, relating to ensuring good performance of governments, their procedure time is quite 19 “Art.1 All power emanates from the lower: the Taxation and Budget (537.4) days people, who exercise it through elected and Administration and Organization of representatives or directly, under this Power (541.6)…” (MOISES, 2011, p.18) Constitution” – our translation 165

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One of the most important a power delegation instrument and not as an characteristics that can be related to the object for a pluralist representation. Brazilian presidential system is that, since the In the studies developed by Manin, 1988 Federal Constitution promulgation, Przeworski and Stokes (1999), it was governability has been the buzzword by asserted that, in modern democracies, it does which this political system revolves around. not matter the “direction” to which the This is due both by historical facts elected representatives follow through, as and the supremacy of an elitist democratic long as they move along, or to be more theory, mostly in line with the models explicit, as long as they hold governability in advocated by Schumpeter20. This elitism is their hands, thus preventing structural crisis verified as rule in many other modern derived from an inertial condition of actions. democracies (MANIN, PRZEWORSKI E Indeed, stability is preferred over the risks STOKES. 1999). As the academic studies that might be brought by a more plural demonstrates, this democratic model not political representation. only places individual participation on a The Brazilian political model is second plan, but also regards it as something corroborant with this scenario as they make to be limited21, and has universal suffrage as use of strategies such as distribution of posts, either ministerial or administrative in

public companies, so as to be able to activate 20 “The voters outside of parliament must their agenda, as shown in the last section. respect the division of labor between themselves and the politicians they elect. The representation of the individual wills is They must not withdraw confidence too overlooked and used in election issues, easily between elections and they must understand that, once they have elected an mainly based in the power relation among individual, political action is his business and media and politics in the not theirs. This means that they must refrain from instructing him about what he is to construction/deconstruction of electoral do—a principle that has indeed been arguments (CASTELLS, 2009). universally recognized by constitutions and In this sense, it can be wondered: political theory ever since Edmund Burke’s time.” (SCHUMPETER, 1969, P.295) Can we affirm that the underrepresentation 21 “This stabilization occurred in two ways: by giving priority to the accumulation of could be strict connected to the structural capital in relation to social redistribution, problem of the executive power overlapping and by limiting citizen participation, both individually and collectively, in order to not of the legislative power in the “Coalition "overload" to much the democratic system Presidentialism”? with social demands that could put endanger the priority of accumulation over Having this question on mind, redistribution”. (AVRTIZER&SANTOS, some thoughts can be developed. In spite of 2003, p.14)

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the fact that the proportional vote brings in within the Brazilian government presents itself a more fragmented character, thus itself as an effective filter of social plurality more connected with the different national demands. demands in the countries´ geographical To understand the democratic aspect, it lacks of this same fragmentation in representation filter regarding the the economical aspect. As we showed maintenance of certain status quo, the veto before, the legislative vote in Brazil is more players concept of Tsebelis (2009) can be conservative, representing mainly the local useful. According to the author, political elites, due to its economic resources to pay institutions would also be composed of the campaign costs. actors constitutionally power vested with the In face of this character, the right to opine about policy decisions, with parliament would be prone to specific status the capacity of veto. The distance between quo maintenance (ABRANCHES, 2012). the interests of these actors would set the Contradicting the executive votes profile game of interests within the Government. who represents voters with more reformist In addition, according to Tsebelis features, willing to change this specific status (2009), the structural design composed with quo and that make reference to at least half the veto players, allows only incremental plus one of the national electorate, referring changes in political legislation, due to the to the number of votes needed to the difficulty of reaching consensus in any president election. Thus, it is not possible to specific bill with the diverse interests being affirm that the legislative with conservative sometimes diffuse or antagonistic, contained characteristics would represent the in the discussion and decision sphere. aspirations of the population within its social Corroborating the thesis of plurality. democratic elitism, according to Müller Therefore as observed, the plurality (2009), is the multiplicity of veto players that representation flaws are not just located on guides to an institutional stability. Compared the structural nature of the "Coalition with the previous section on the functioning Presidentialism". This surely brought various of the Brazilian political system, we can characteristics to this “relationship”, further verify this institutional structure composed accentuating the disconnection with the of several instances with veto power, social demands, due to the power struggle providing institutional stability within the that prevails over the structural policy "Coalition Presidentialism". However, changes implementation, as demonstrated despite the desired institutional stability, due previously. Besides, this power struggle to the large number of veto players it allows

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only incremental changes and the democracies, because it affects maintenance of a certain status quo. the legitimacy and In protecting this particular status effectiveness of a central dimension quo, according Abranches (2012), of the system, from developing countries face a central problem the perspective that emphasizes the because such countries need deep structural quality of changes, while the mechanisms of self- democracy (MOISES, 2011, preservation of modern democracies prevent P.27 – our these changes, such as reflected here. This translation)

conflict is against the flow of individual Assessing the democratic quality, in demands for reforms. this case, is directly connected to the The self-preservation in modern legitimacy of this political process in democracies dynamics came to play an apprehend the people, in its plural and important role in the recent political diverse sense, as sovereign and central at the maturation in Brazil, not just as political government structures. Thus, for the system but in its institutions in general. This democracy to be understood in its full sense, is also due to the international scenario that representation and inclusion should be differs almost completely to the others observed within the great national plurality national democratic experiences, these dimension, in relation to the interests experiences were marked by decisional pertained to several society’s stratus. paralysis and constant tensions between the Nevertheless, apart from legitimacy, from a powers. value chain point of view, the procedural However, despite this harmony most important dimensions, whose existence between military, political system and is essential to a higher level of democratic constitutional norms obedience, combined quality, is also defective, since accountability, with a long period of stability and economic as one of the most important dimensions for growth, the perception of democracy by the representation, cannot be fully applied. people is negative. Due to these exposed points, some The negative public political thinkers22 have considered the perception on the Brazilian democracy as a low quality one. performance of Congress cannot be The argument behind this assertion accounts ignored if the goal is for the fact that, in the name of to understand the dynamics of representative 22 (MOISES,2011; VIANNA, 2012, SANTOS, 2004)

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governability, a reprehensible political change, as Inglehart and Abramson (1994) practice has been put in practice. For the would argue. difficulties in obtaining a simple majority in In this specific reflection, the goal the decision making process, paves the way it is to analyse this scenario with a to the construction of heterodox alliances philosophical political point of view. If it is with very distinct ideologies. assumed that democracy presents the best tools for organizing the societies25, than this Desirable Ways For The Brazilian type of judgment is essential. In this sense, Democracy Lefort has a very strong point that helps to

make clear the role that the political science It might be surprising to make such has in the defence of our democracies, when an assumption regarding the Brazilian he advocates for the revival of a political political scenario, especially in this moment philosophy: that the country has been acknowledged as a nation in strongly “development” that has Understand democracy as a accomplished notable achievements in subject with a set of reducing inequality and extreme poverty. In moral values. This will allow us to 2012, a survey applied by the National understand Economic Research Institute reveals that in democracy as a form to organize the a 0 to 10 scale, Brazilian people ranked their society considering lives with a 7,1 grade, in a medium scale23. the dichotomies that are in the kernel of As an addition to that, the President in the human relations, exercise has been approved by 78% of the being able to understand and grasp population, according to the last opinion the difference in survey from December 201224. Deeper between legitimacy and illegitimacy, scrutiny is necessary if a comparison in between truths and between political and economic attitudes is lies, between authenticity and to be taken. It is not possible, at this imposture, between moment, to relate the differences in between the pursuit of power or of private interests representation and economic satisfaction to a theory of economic security and value 25 “Althought democracy may not assure representation, it is still plausible that 23 See the editorial: “2012: Desenvolvimento democracy is more conducive to Inclusivo Sustentável” (IPEA, 2012) representation than alternative regimes.” 24 See the editorial: “Aprovação do Governo (MANIN,PRZEWORSKI &STOKES, Dilma atinge novo Recorde de 78%” 1999, p.50) (COBUCCI, 2012) 169

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and the pursuit of the not conceived as a movement towards the common good. If we maintenance of an status quo and this was not refuse to risk making judgements, we lose its central role along the its consolidation all sense of the path. Democracy, as the rule of the people, difference between forms of society. If is has in its reasoning the premise to follow up assumed that with the new conceptions of people, taking democracy presents the best tools for into consideration the general changes in organizing the society. Reflecting on this, the exposed societies, than this type of judgment is political system as it is composed and indispensable founded cannot be able to exercise a (LEFORT, 1988, p.9) flexibility that a democratic practice requires. It cannot be denied that democracy For this reason, recovering some is founded in tension and some level of points exposed in this reflection, might lead contradiction. As reflected by Rosanvallon us to think about the importance of (2008), democracy represents a contradiction democratic legitimacy to be applied over this in between conflict legitimacy and the political model, as a means to change the aspiration of consensus, a contradiction consolidated structures that builds a barrier between a realistic decision principle and a to the attempt of constructing a valuable and justification principle. Nevertheless, as a better quality representation system. The philosophical and moral concept is also part points highlighted by Pierre Rosanvallon of a democratic dimension analysis, the (2008) accounts for the establishment of a values attributed to the political practices are modern sense of generality, by which could also to be considered. Thus, another dualism be applied the procedures towards is emerged, by which a tension in between a democracy decentralization. Thus, attention decision-making democracy and a conduct to the three types of legitimacy should be oriented democracy is also established. In given. Impartiality legitimacy should be this sense, as figured by Avrtizer and Santos linked to a detachment of particularity, (2003), democracy should always imply the supporting the basis for equality and rupture of a series of consolidated traditions suppression of granted privileges. On and, therefore, set up the continuous reflexivity, democratic legitimacy is regarded tentative of instituting new determinations, to the possibilities of multiplying the new rules and even new laws. expressions of social sovereignty, creating In a clear contradiction to an elitist real participation spaces other than direct model that is being perceived at the political elections. And finally, in a proximity scenario in Brazil, democracy, in history, was

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dimension of legitimacy, attention to Alvarez, Débora; Brito, Ricardo. Renan Calheiros volta à presidência do Senado após particularity is to be given in order to attend 5 anos de sua renúncia Parlamentar venceu the diverse society demands in the defence disputa contra Pedro Taques (PDT-MT) por 56 votos a 18. Estado de São Paulo, São of a plural representation. Paulo, 01 fev. 2013. Available in: < Through this perspective the http://www.estadao.com.br/noticias/nacio nal,renan-calheiros-volta-a-presidencia-do- democracy and its representation system in senado-apos-5-anos-de-sua- Brazil needs to move towards a refunding of renuncia,991822,0.htm> access in: 12 fev. 2013. its basis, bringing more legitimacy by Avritzer, Leonardo and Santos, Boaventura plurality, replacing elitism by a new political de Souza. Para ampliar o cânone concept "based on the creativity of social democrático. Revista Critica de Ciências Sociais, 11 mar. 2003. 30 p. Available in actors"26. As stated by Manin, Przeworski access in 02/01/2013 of room for institutional creativity". (1999, Bergamasco, Débora; Lopes, Eugênia. p.51). Renan dá cargos, consolida apoios e deve vencer no Senado com ampla vantagem. Estado de São Paulo, São Paulo, 31 jan. 2013. Available in: access in: 12 fev. 2013. Castells, Manuell. Comunicación y Poder. Madrid: Alianza, 2009, 679 p.

Cobucci, Luciana. Aprovação do governo Dilma atinge novo recorde de 78%. Portal Terra, Brasília, 14 dez. 2012. Available in: < References http://noticias.terra.com.br/brasil/politica/ aprovacao-do-governo-dilma-atinge-novo- Abranches, Sérgio. Presidencialismo de recorde-de- coalizão: o dilema institucional brasileiro. 78,76a69a713899b310VgnVCM3000009acce DADOS – Revista de Ciências Sociais, Rio b0aRCRD.html> access in: 12 fev. 2013 de Janeiro, vol. 31, nº1, 1988, p.5-38 Constitution of the Federative Republic of Abranches, Sérgio. Federação e Brazil of 1988, Available in presidencialismo de coalizão: 3º Ciclo de access in Federação e presidencialismo de coalizão, 02/01/2013 Rio de Janeiro, 15 jun. 2012. Available in: opposition. New Haven, Yale University access in 02/01/2013 Press, 1971 Dahl, A. Robert. Democracy and its critics. New Haven, Yale University Press, 1989. 26 (Avrtizer&Santos, 2003) 171

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Figueiredo, Angelina; Limongi, Fernando. Müller, Gustavo. Representação política: Modelos de Legislativo: O Legislativo Neoinstitucionalismo em perspectiva Brasileiro em Perspectiva comparada. Revista brasileira de ciências Comparada. Revista Plenarium. Câmara dos sociais, São Paulo, vol. 24, nº69, 2009, Deputados, Ano 1, Nº 1, Novembro de p.115-127 2004, p. 41-56. Nicolau, Jairo. Como Controlar o Figueiredo, Angelina; Limongi, Fernando. Representante? Considerações sobre as Processo Orçamentário e Comportamento Eleições para a Câmara dos Deputados no Legislativo: Emendas Individuais, Apoio ao Brasil. Dados – Revista de Ciências Sociais, Executivo e Programas de Rio de Janeiro, vol. 45, nº2, 2002, p. 219-236 Governo. DADOS Revista de Ciências – Norris, Pippa. Critical Citizens: global Sociais, Rio de Janeiro, vol. 48, nº 4, 2005, p. support for democratic government. 737-776 Oxford: Oxford University Press, 1999. Foucault, T, Michel. Il faut defendre la Oxfam The cost of inequality: how wealth société: cours au College de France. 1975- and income extremes hurt us all: Oxfam 1976. Paris: Gallimard/Seuil, 1997. Media Briefing, ref: 02/2013, 18 jan. 2013. Inglehart, Ronald; Abramson, Paul. Available in:< Economic security and value change. http://www.oxfam.org/en/pressroom/pres American Political Science Review 88: 336- srelease/2013-01-19/annual-income-richest- 354 100-people-enough-end-global-poverty- IPEA. 2012: Desenvolvimento Inclusivo four-times> access on: 08 fev. 2013 Sustentável. Comunicados IPEA, Brasília, Powell, G. Bingham. The chain of nº158, 18 dez. 2012. Available in: < responsiveness. Journal of Democracy, http://www.ipea.gov.br/portal/images/stor Vol.15, n.4, October 2004. P.91-105 ies/PDFs/comunicado/121218_comunicad Przeworski, Adam; Stokes, Susan; Manin, oipea158.pdf> access in 04 jan. 2013 Bernard. Democracy, Accountability, and Lefort, Claude. Democracy and political Representation. Cambridge: Cambridge theory. Cambridge: Polity in association with University Press, 1999, 351 p. Basil Blacwell, 1988. Rosanvallon, Pierre. Democracy past and Limongi, Fernando. A Democracia no future. New York, Columbia University Brasil: Presidencialismo, coalizão partidária e Press, 2006. processo decisório. Novos Estudos Cebrap, Rosanvallon, Pierre. La legitimité São Paulo, nov., nº76, 2006, p. 17-41 democratique: Impartialité, reflexivité, Moisés, José Alvaro. O desempenho do proximité. Paris, Editions de Seuil, 2008. congresso nacional no presidencialismo de Rosanvallon, Pierre. La societé des égaux. coalizão (1995-2006). In: Moisés, José Paris, Seuil, 2011. Alvaro (participation/org.). O papel do congresso nacional no presidencialismo de Santos, Fabiano; Almeida, Acir. coalizão. Rio de Janeiro: Konrad-Adenauer- Fundamentos Informacionais do Stiftung, 2011. p. 7-29. Presidencialismo de Coalizão. Rio de Janeiro: Appris, 2011, 216 p. Moraes, Filomeno. Executivo e legislativo no Brasil pós-constituinte. São Paulo em Santos, Fabiano. A reforma do poder Perspeciva, São Paulo, vol.15, nº4, 2001, legislativo no Brazil. Revista Plenarium. p.45-52 Câmara dos Deputados, Ano 1, Nº 1, Novembro de 2004, p. 26-40. Morlino, Leonardo. Qualities of democracy: How to analyze them? Florence: Instituto Italiano di Scienze Umane, 2009.

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Schumpeter, Joseph Alois. Capitalism, socialism and democracy. London: Routledge, 1994, 437 p. Touraine, Alain. Pourrons-Nous Vivre Ensemble? Égaux et différents. Paris: Editions Fayard, 1997 Telles, Vera da Silva. Igualdade: Qual a medida? In: Veras, Maura Pardini Bicudo (org.). Hexapolis: desigualdades e rupturas sociais em metrópoles contemporâneas. São Paulo: Educ e Cortez, 2004. Tsebelis, George. Atores com Poder de Veto: como Funcionam as Instituições Políticas. Rio de Janeiro: Editora FGV, 2009, 440 p. Vianna, Sérgio Besserman. Representatividade na democracia Brasileira: 3º Ciclo de Conferências - Eleições e Reflexões: Federação e presidencialismo de coalizão, Rio de Janeiro, 18 jun. 2012. Available in: access in 02/01/2013

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Jennifer di Paolo Violence Against Native American Women in the United States

Violence Against Native American Women in the United States

Jennifer DI PAOLO, University of Toronto, Canada

Abstract

n response to the topic of Global Justice and Human Rights: Country Case Studies, I will discuss the origin and continuation of violence against Native American women in the United States. In a report named Maze of Injustice: The Failure to Protect I Indigenous Women from Violence by Amnesty International, the organization deemed the current status of violence against indigenous women one of the most pervasive yet hidden human rights abuses. The U.S Department of Justice has found that Native American and Native Alaskan women are 2.5 times more likely to be raped or sexually assaulted1. During an International Expert Group Meeting discussing Combatting Violence Against Indigenous Women and Girls, the United Nations Department of Economic and Social Affairs declared it a human rights issue of epidemic proportions. One in three Native American women are raped and three in five are physically assaulted. In reference to interracial violence, four out of five Native American victims of sexual assault reported that the perpetrator was white2. Unfortunately due to the shame and stigma surrounding topics such as sexual assault and rape it is estimated that in reality these numbers are far higher. Scholars and historians of pre-colonial Native societies have found that during this period women held prominent positions and violence against women was rare. With colonization came a radical change to the role of women in Native society. Gender based violence and the exclusion of women in important positions was a powerful tool used by British settlers to dismantle the structures of native society and ultimately conquer it3. Presently, due to the inadequate legal power given to Indian nations the crisis is not being dealt with efficiently. For example, Indian nations are unable to prosecute non-Indian offenders4. In my discussion of violence against Native women in the United States I will begin by analyzing its colonial origins. Next I will discuss why this violence persists today with reference to laws and judicial processes. Finally, I will discuss what must be done to end these human rights abuses.

1 Amnesty International. Maze of Injustice: The Failure to Protect Indigenous Women from Violence in the USA (24 April 2007) http://www.amnesty.org/en/library/asset/AMR51/035/2007/en/ce2336a3-d3ad-11dd-a329- 2f46302a8cc6/amr510352007en.html (accessed December 20 2012) 2 Henry, Terry. Addressing Violence Against Native American Women and Girls as a Human Rights Issue. United Nations Department of Economic and Social Affairs. Combatting Violence Against Indigenous Women and Girls: Article 22 of the United Nations Declaration on the Rights of Indigenous People (New York, January 2012) http://www.un.org/esa/socdev/unpfii/documents/EGM12_Henry.pdf (accessed December 20 2012) 3 Amnesty International. Maze of Injustice: The Failure to Protect Indigenous Women from Violence in the USA 4 Henry, Terry. Addressing Violence Against Native American Women and Girls as a Human Rights Issue

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n a report named Maze of Injustice: developments in laws pertaining to The Failure to Protect Indigenous Native women and various organizations Women from Violence by Amnesty and initiatives created by female Native International, the organization activists have made progress for the I deemed the current status of safety of Native women. In this violence against Native women one of discussion of violence against Native the most pervasive yet hidden human women in the United States we will begin rights abuses of our time. The United by analyzing women’s role in traditional States Department of Justice has found Native society. Then we will investigate that Native American and Native Alaskan the colonial origins of violence against women are 2.5 times more likely to be Native women. Next we will discuss why raped or sexually assaultedi. During an this violence persists today with reference International Expert Group Meeting to laws and judicial processes. Finally, we discussing Combatting Violence Against will discuss what female Native activists Indigenous Women and Girls, the United are doing to combat the problem and the Nations Department of Economic and most efficient solutions to these issues. Social Affairs declared it a human rights We must begin our analysis of issue of epidemic proportions. One in violence against Native women by three Native American women are raped addressing the question of what role and three in five are physically assaulted. Native women had in traditional In reference to interracial violence, four society. Although the position of out of five Native American victims of women in Native society differed from sexual assault reported that the tribe to tribe there are many common perpetrator was whiteii. Unfortunately due characteristics among them. Overall, to the shame and stigma surrounding women held a complementary role to topics such as sexual assault and rape it is men instead of a secondary oneiv. estimated that in reality these numbers Native society was built on beliefs and are far higher. Scholars and historians of practices that made up an integral part pre-colonial Native societies have found of their culture such as the belief of that during this period women held respect and safety, which protected all prominent positions and violence against Native people, including women, from women was rare. With colonization came violence. The relationship between men a radical change to the role of women in and women within Native families was Native society. A gender based hierarchy, built on these beliefs of safety and violence, and an attack on the important respect and mothers played an role of Native motherhood were important role within the family, powerful tools used by British settlers to culture, society, and economyv. Native dismantle the structures of Native society mothers were a part of the economic and ultimately conquer itiii. Presently, due system because they had control over to the diminution of Native sovereignty the home, food production, trade, and and the subsequent inadequate legal the distribution of resourcesvi. power given to Indian nations the crisis is Although there was a division of labour not being dealt with efficiently. Despite between men and women this division these limitations, the recent was not used to oppress women 175

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because the labour of both genders was traditional laws and beliefs that kept seen as equally valuablevii. Some Native Native women safe. Europeans societies such as the Iroquois were believed that the status of women in matrilineal and in these societies Native society was uncivilized and that mothers held very powerful positions instituting a gendered hierarchy was a such as acting as clan mothers. Some part of the process of civilizationxiii. other rights that Native women enjoyed One way in which this hierarchy was were the right to separate from their achieved was through the refusal of husband and keep their property and European colonists in negotiating with owning most or all of the land Native women. For example, despite including the house and animalsviiiix. the number of female Chiefs and Women were political, military, and councilors, men signed all of the spiritual leadersx. Despite the absence historic treaties, which greatly of an over arching patriarchal system undermined the role of women in like that of Europe, gendered violence political leadershipxiv. Christian did happen within Native society. missionaries also pushed for the However, according to oral and written performance of their view of correct records these occurrences were very gender rolesxv. These roles were rare and the perpetrators often faced different from the spiritual views that severe and public punishment, Natives held and were used to oppress displaying how much respect and safety Native women. Furthermore, was built into Native society xi. It is Christianity suppressed sexual freedom difficult to understand how gendered in sexually liberal Native societies such violence towards Native women went as the Cherokeexvi. Sexual violence was from a rarity to something that occurs another tool of conquest, which was at a rate higher than any other group of displayed in the records of Russian women in America. soldiers in Alaska employing sexual The root of violence against Native violence towards Native women. In women can be traced back to the response to this, Native Alaskan men conquest of America. During conquest attempted to defend Native women European colonists instilled a gendered from this violence displaying their hierarchy within Native society, devotion to maintaining the safety and employed violence, and attacked Native respect of women in their motherhood. Europeans did not communityxvii. In contrast to the use of understand the powerful role of sexual assault as a tool of war, it was women in Native society because rare that Natives used sexual violence European society was far more towards white prisonersxviii. Another patriarchalxii. For the Europeans, violent method used by colonists was dismantling the egalitarian role of clearing the land, which was usually women in Native society was a way of done through relocating entire dismantling Native social structures. communities to an area more During conquest Natives were coerced accommodating for the colonists. into abolishing their system of Removal and relocation led to the loss governance including the system of of customary land, the lifestyles that

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Natives had built on that land, Commissioner of Indian Affairs to economic downturn, and disparityxix. make rules ensuring attendance. There Laws created by the United States were also harsh consequences for government changed individual rights parents who did not allow their pertaining to property, which created children to attend these schools. For drastic changes within matrilineal example, Native parents underwent societies. Not only did women lose coercion such as the rationing of food their control over resources, they also for their tribes, which ensured that lost control over domestic and voting parents would have to choose between rightsxx. Despite these atrocities, the starving their child or sending them to implementation of a gender hierarchy boarding school with the hopes that and the use of violence during conquest they would be fed well. Despite this were not as vicious and hurtful as the hope, the living conditions in colonial attack on Native motherhood. residential schools were no better than Due to the important role that in poverty stricken reserves. Boarding mothers played in Native society as schools were unsanitary, children had economic decision makers, clan to perform labour intensive work, and mothers, and property owners, it is no they provided poor nutrition. The surprise that the colonists attacked combination of these living conditions Native motherhood during bred disease and illness. The conditions colonization. The two ways in which of the residential schools were cruel the colonists did this was through and inhumane and native children were residential schooling and forced subjected to emotional, physical, sterilization. In the boarding school era spiritual, and sexual violence. At of 1880-1950, residential schooling residential schools Native children were would become one of the strongest not allowed to practice their language forms of forced assimilation. In this era or culture and instead were taught Native children as young as five years about European history, culture, and old were taken from their homes and the English language. Many Native families to attend residential schools children lost their spirituality in the until age 18xxi. The first boarding school forced conversion to Christianityxxii. was named The Carlisle Indian School This was important for Native women and was created by Captain Richard because although Native spirituality Henry Pratt in 1879. Initially this was egalitarian, Christianity is school had no support from the patriarchal. Upon returning home, American government but in 1891 after Natives felt alienated because they Pratt had lobbied the government could not understand the language or extensively, funding and support was culture and because they had been given to open more boarding schools. taught that Native culture was inferior The separation of Natives from their to American culture. Many Natives that homes was thought to be vital to the had grown up in residential schools assimilation process. Not surprisingly, were unable to become adequate Native parents desperately attempted to parents in terms of passing down their resist sending their children to boarding culture, language, spirituality, or schools but Congress allowed the lifestyle to their children. Residential 177

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schooling dismantled the empowered patient and most of the forms used for traditional position of motherhood in Native patients did not abide by Native society in three ways. First, by government regulations of informed taking children away from the guidance consent. Furthermore, it is unknown if of their mothers to force them into adequate counseling was provided residential schooling where they lost before sterilization procedures. Some their language and culture. Second, by Native tribes such as the Navajo ensuring that women that grew up in provided counselors but areas such as residential schools would be unable to South Dakota, Montana, and properly mother their children because Oklahoma did not have counselors and of emotional and psychological issues. only the doctor was present during the The effect that boarding schools had sterilization procedure. Various law on the mental health of Natives led to suits have been filed in reference to mental health conditions and a reliance these flawed sterilization procedures. on alcohol. These two issues combined Michael Zavalla is a lawyer that with a lack of the ability to be good represented three Native women from parents led to the removal of Native Montana in a class action lawsuit children from their homes to be placed against the Department of Health, in foster care or adoption. This Education, and Welfare. This litigation continued the cycle of removing Native was based on the evidence that these children from their mothers and is the women were sterilized without consent third way that the role of the Mother in or being fully informed of the Native society had been forever operation. It was filed against hospital changedxxiii. doctors who forced Native women into The next way in which the colonists sterilization by suggesting that if they attacked Native motherhood was did not undergo the process they would through forced sterilization. Although lose access to welfare benefits, that the women of many minority groups in surgery was unavoidable, or worse, that America underwent forced sterilization it could be reversed if needed. The case in the 1970s, there was something did not go to trial but it was settled unique about Native women in that through compensation on the they were much more dependent on agreement that the plaintiffs’ identity the federal government. This and the details of the case would dependence was specifically in relation remain undisclosed. After learning of to the Indian Health Service, the this case and others, a judge from the Department of Health, Education, and Northern Cheyenne Reservation named Welfare, and the Bureau of Indian Marie Sanchez decided to conduct her Affairsxxiv. Between 1973 and 1976, own inquiry into the cases of Indian Health Service clinics sterilized sterilization within her tribe. The results 3,406 Native women. It is difficult to she obtained were unsettling. Between determine if Native women were 1973 and 1976, two girls under 15 years thoroughly informed of the procedure of age were sterilized under the false and truly consented to it. There was not pretense that they were getting their a standard consent form used for every appendices removed. Another woman

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underwent a hysterectomy after being crimes deemed severe were murder, convinced by her physician that the kidnapping, assault, and sexual abusexxix. migraines she was suffering from This Act has restricted the ability of would be cured by it. It was discovered Native tribes to exercise jurisdiction at a later time that the source of her within their own reserves thus problem was actually a brain tumour. threatening their self-governance and Forced sterilization undermined the sovereigntyxxx. The basic premise for ability of Native women to reproduce, federal control over Native jurisdiction disabling them from creating the next rests upon the dependence of Native generation to maintain their beliefs, tribes on the American government culture, and traditionsxxv. Sterilization despite the reality that many Native also has destructive effects on the tribes posses their own government, survival of an entire tribexxvi. Women police force, and judicial system. that were misinformed or coerced into Federal response to Native crime is sterilization were denied basic slow and inadequate and Native reproductive rights and more prosecution would be much more importantly, control over their own efficient. Native police and judicial body. For these reasons, sterilization systems are superior in investigating was a direct attack on the traditionally and prosecuting crimes that occur powerful role of Native motherhood. within their tribes because of their Next we will investigate the legal proximity to the crimes and their relationship between Natives and the knowledge of the nature of Native federal government. Through a gradual crimexxxi. The Major Crimes Act has process of diminishing Native self- facilitated violence against Native government and the sovereignty of women because it has allowed the Native jurisdiction, Native women have American government to assume been separated from any other group control over jurisdiction of crimes that of American women and it has become disproportionately affect womenxxxii. increasingly difficult for Native tribes The inefficiency of the federal to protect themxxvii. This legal government in their response and relationship has made Native women investigation of major crimes the most oppressed group of women in committed in Native Country has America and the least protected legally. become an inefficiency related to In our investigation of the legal crimes against women. Public Law 280 relationship between Native tribes and was enacted in 1953 and altered the the federal government we will analyze laws of the Major Crimes Act in some the Major Crimes Act of 1885, Public states. This law shifted the control of Law 280 of 1953, the Indian Civil the Federal government over Native Rights Act of 1968, and the Oliphant jurisdiction to the state governments V. Suquamish case. within California, Minnesota, Nebraska, The Major Crimes Act of 1885 Oregon, Washington and Alaska in allowed the American government to 1958. The rest of the states were given assume complete jurisdiction over the option to adopt Public Law 280 if severe crimes committed by Native and when so chosexxxiii. The shift from Americans in Native Countryxxviii. The federal to state government occurred 179

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with no contribution or consent from The next case that threatened the the Native tribes and Native Americans protection of Native women was the rightly saw it as another threat to their Oliphant V. Suquamish Indian Tribe self-governancexxxiv. A major reason decision. The plaintiffs of this case Public Law 280 was passed was to were arrested by tribal police on the decrease federal spendingxxxv. However, Suquamish reserve. Both plaintiffs in this process the federal government wanted to be tried under habeas corpus did not supply money to state in federal courts but they were denied governments to fund law enforcement this request and their case went to the activities leading to even more Supreme Courtxl. The ruling that came deficiency in these areas. Moreover, the out of this case was that Native tribes Bureau of Indian Affairs decreased are unable to prosecute non-Natives. funding to Native authorities because The reasons given for this ruling were of the transfer from federal to state that the reserve was given to the governmentxxxvi. Native women were Suquamish Tribe by the federal negatively affected once again because government, that the state of of the decrease in funding for dealing Washington had funded the creation of with crimes that fall under the Major their schools, roads, and other public Crimes Act and Public Law 280. property, and that there were far more The Indian Civil Rights Act of 1968 non-Natives in this area than Natives. allowed Native tribal government This ruling has had disastrous effects jurisdiction over some criminal on the safety of Natives because both procedures and the protection of other the federal and state governments have basic rights including due process of proven to be inefficient in prosecuting law. Supposedly, it was created to crimes pertaining to Natives. This is protect Natives from civil rights abuses due to the lack of resources and desire inflicted upon them by their tribesxxxvii. to respond efficiently and promptly to However, many Native tribes did not Native crimexli. This ruling has left see the ICRA as a Bill of Rights Native women susceptible to danger designed to protect Natives but as imposed on them by non-Natives, another attack on their sovereigntyxxxviii. which is startling due to the high Certain policies within the Indian Civil percentage of violence imposed on Rights Act had once again restricted Native women by non-Native their ability to respond to crime. Tribal perpetrators. For example, four out of courts were restricted from imposing a five Native victims of sexual violence penalty of more than one year and a claim that the assaulter was whitexlii. five thousand dollar fine for any one This decision structurally prevents offence. These offences could include protection for Native women against murder or rape, two crimes that effect the interracial violence they endure. Native women at an alarming ratexxxix. The legal initiatives that we have This undermined the ability of tribal explored so far have led to a serious courts in responding adequately to deficiency in protecting Native women serious crimes and in protecting Native against violence. The Major Crimes Act women from these crimes. restricted tribal jurisdiction over severe

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crimes that disproportionately affect governments insufficiency in dealing women, thus separating Native women with Native crime has left Native from other American women. Public women unprotected, alienated, and Law 280 transferred this power from distrustful. Two recent Acts that have the federal government to the state somewhat responded to these issues government in certain states without and have improved the protection of providing sufficient funding leaving Native women against violence are the Native women even more unprotected. Violence Against Women Act of 2005 The Indian Civil Rights Act gave and the Tribal Law and Order Act of Natives a Bill of Rights but limited 2010. tribal governments from employing The Violence Against Women Act serious punishments to perpetrators of passed in 2005 is the first of the two major crimes. Finally, protection for most recent acts that have sought to Native women against violence diminish violence against Native inflicted on them by non-Native men American women. Due to the policies was diminished in the Oliphant V. within this act, for the first time Native Suquamish decision. These Acts and tribes have gained access to valuable decisions have impacted the services resources that can combat violence and programs provided to Native against Native women in their women. The increase in psychological communities. It is especially helpful for and physical illnesses is a aiding domestic violence, sexual demonstration of the negative effects violence, and stalking. Not only does it that violence has had on Native allow access to new resources but it women. Studies have shown that also recognizes the sovereignty of tribal Native women experience a higher rate responses to these crimesxliv. The of Post Traumatic Stress Disorder, second contemporary act that has made alcohol abuse, suicide and various other a positive impact on the lives of Native mental illnesses than any other group women is the Tribal Law and Order of women. Although it is proven that Act of 2010. This act includes policies Native women experience sexual and that will help Native survivors of sexual physical violence at a greater rate than and domestic violence. Some of the women of any other race, there is still a specific sections within this Act that serious lack of research on the physical pertain to victims of sexual and and psychological effects of these domestic violence are sections 261, crimes. What is distinct in the situation 262, 264, and 266. Section 261 gives of Native women is the historical tribal government modes of amending trauma endured by Native Americans the criminal system and the ability to within their relationship with the track federal offenders. By ameliorating federal government. Historical trauma the criminal system, tribal governments includes intergenerational and societal will be able to deal with perpetrators of oppression that is historical and violence more efficiently. Increasing ongoingxliii. The policies of stripping the ability to track federal offenders will away the power of tribal court systems reverse some of the negative affects of over crimes related to Native women the Oliphant V. Suquamish decision coupled with the federal and state and will aid in the protection of Native 181

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women against non-Native embody Native feminism: Renya perpetrators. Section 262 gives tribal Ramirez, Andrea Smith, and Luana police more efficient methods of Ross. Renya Ramirez is a member of questioning victims and obtaining the Winnebago Tribe of Nebraska. She evidence. It also ameliorates the advocates that Natives need to consider services provided to victims by fighting violence against Native women extending the U.S Department of a priority in ameliorating the overall Justice sexual assault procedures to status of Native communities. Ramirez Native health clinics. This policy helps argues that this must be done by in decreasing the alienation of Native considering racial, tribal, and gender women from non-Native women by issues as intersectional and providing them with the same standard nonhierarchical. She believes feminism in sexual assault assistance. Section 264 is an important ideology to spread increases the services and programs for within Native communitiesxlvi. Next is Native American victims of assault and Andrea Smith, an activist and scholar it seeks to decrease the amount of from the Cherokee nation. Smith Native women that are trafficked for advocates ending gendered violence as sex work. This addresses the very a means of survival for Native tribes. serious issue of sex trafficking by She views the abolishment of the working to protect and decrease the power held by Native women as number of Native women that are simultaneous to the abolishment of negatively affected by it. Lastly, section Native sovereignty. Smith sees the 266 enhances the ability of the Indian value in creating a Native criminal Health Services to respond to sexual justice system separate from the state and domestic violence in remote areas. because the state has created many This is especially helpful in protecting problems within the Native Native women that live in isolated communityxlvii. Andrea Smith has also tribes and have difficulty traveling to organized the Colour of Violence: federal health clinics or seeking federal Violence Against Women of Colour legal actionxlv. Overall, it has attempted Conference to combat violence against to increase the services and programs women of colour specifically because it available for Native women to a level is often over looked in academia and comparable to those available for other activism. This conference serves as an women within the United States. open forum for women of colour, Despite the overwhelming amount including Native women, to converse of structural ways in which violence is about the violence they facexlviii. An inflicted against Native American initiative that came out of this women it would be discouraging and conference and that was co-organized incomplete to ignore the progressive by Smith is INCITE! Women of work that Native female activists have Colour Against Violence. This done in regards to combatting this organization is comprised of feminists violence. Although there are numerous of colour and it works on intersectional exceptional Native female activists, we issues pertaining to state violence, will be focusing on three scholars that sexual, and domestic violence. It

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functions as a grass roots organization to Native feminismlii. Ross’ work instead of using social service empowers women through storytelling methodsxlix. Lastly is Luana Ross, a and advocacy and promotes Native keynote speaker at the first Colour of tribal sovereignty. Violence Conference and another By analyzing female Native activists phenomenal Native female activist. one can view the progress that is being During her speech she called on made within Native communities in Natives to use traditional views of terms of creating organizations and sovereignty to protect Native women conferences to analyze and attack these against violence instead of depending issues, theorizing about solutions, and on the federal government for creating safe spaces for Native women assistance. She also advocated for full to speak about the violence that they tribal jurisdiction over crimes relating have endured. The complexity of the to Native womenl. Ross was born in issue of violence inflicted upon women Flathead Indian Reservation in coupled with the cultural differences Montanali. In the 1980s she began between Native tribes makes it difficult organizing retreats for Native women to establish a set of blanket guidelines to help them heal from violence. These to eradicate this problem. However, retreats became a forum for women to after analyzing the reasons and speak to each other and female responses behind violence against counselors about the violence they Native women in the United States we endured. She also gave presentations to can conclude with three viable reserves about the importance of solutions. The three solutions that feminism and gave Native women the would make profound differences in opportunity to speak about their the protection of Native women would experiences with violence. This is be the establishment of tribal important because during the 80s sovereignty, increasing awareness violence was entrenched in Native surrounding this issue, and the society and even normalized. Ross empowerment of Native women. Tribal addresses an important issue in her sovereignty is the most obvious work that is not easy to quantify by solution to this and numerous other research. This issue is the desire of problems that Native Americans face. Native women to shield Native men By allowing tribes to have legal from the federal criminal justice system authority over their own affairs, the because it is viewed as another form of traditional spiritual and political role of colonialism. For this reason, it is Native women can be re-established. difficult to know exactly how many Tribes will be able to respond to crime Native women are subjected to in a manner that is non-assimilative and violence. Ross advocates for the power corresponds with their culture, which of feminism and for connecting Native will ultimately end the colonial legacy feminism to the larger feminist of federal control over Native crime community. She directly connects the especially those crimes that affect increase of domestic violence programs Native women at alarming rates such as for Native women and the new murder, rape, kidnapping, and stalking. openness for discussion about violence Moreover, it would work to reverse 183

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some of the negative affects of colonialism. The next solution is ending http://www.un.org.myaccess.library.utoront the silence surrounding the injustices o.ca/esa/socdev/unpfii/documents/EGM1 suffered by all Native Americans with 2_Henry.pdf iii Amnesty International “Maze of Injustice: an emphasis on those endured by The Failure to Protect Indigenous Women Native women. This can be done by from Violence in the USA” garnering more research with respect to iv Laura F. Klein and Lillian A. Ackerman the issues discussed and by ensuring eds. Women and Power in Native North America that the methods of attaining this (USA: University of Oklahoma Press, research is engineered in a way that Norman, 1995) 236 v Sarah Deer, Bonnie Clairmont, Carrie A. properly examines Native culture and Martell and Maureen L. White Eagle eds. life. The final solution is empowering Sharing Our Stories of Survival: Native Women Native woman. This would include Surviving Violence. Tribal Legal Studies, ed. ensuring that Native women are able to Gardner, Jerry (Plymouth, U.K:AltaMira resume powerful roles in society Press, 2008) 5 vi through adequate education and health Ibid., 8 vii services especially safe reproductive Andrea Smith. Conquest: Sexual Violence and American Indian Genocide. (Cambridge, MA: services. This would also include South End Press, 2005) 18 allowing extensive access to resources viii Roe Bubar and Pamela Jumper Thurman for Native women activist “Violence Against Native Women” Social organizations so that they can uplift Justice 31, no.4 (2004) accessed January 1 women in every Native community. 2013, 74 Ensuring that women have the http://www.jstor.org.myaccess.library.utoro resources they need to address issues nto.ca/stable/29768276 ix Hilary Weaver “The Colonial Context of pertaining to their specific community Violence: Reflections on Violence in the will lead to the most positive and Lives of Native American Women” Journal of efficient change for Native women. Interpersonal Violence 24, no. 9 (September 2009) accessed January 27 2013, 1554 http://journals2.scholarsportal.info.myacces s.library.utoronto.ca/tmp/113619194713538 92927.pdf x Andrea Smith Conquest: Sexual Violence and i American Indian Genocide 18 Amnesty International, “Maze of Injustice: xi The Failure to Protect Indigenous Women Ibid., 12 xii Ibid., 17 from Violence in the USA” (Amnesty xiii International Publications, 2007) accessed Sarah Deer, Bonnie Clairmont, Carrie A. December 20 2012 Martell and Maureen L. White Eagle eds. http://www.amnestyusa.org/our- Sharing Our Stories of Survival: Native Women Surviving Violence. 8 work/issues/women-s-rights/violence- xiv against-women/maze-of-injustice Hilary Weaver “The Colonial Context of Violence: Reflections on Violence in the ii Lives of Native American Women” 1555 Terry Henry. “Addressing Violence Against xv Native American Women and Girls as a Amnesty International “Maze of Injustice: Human Rights Issue” (New York, United The Failure to Protect Indigenous Women Nations Department of Economic and from Violence in the USA” Social Affairs, January 2012) 1

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xvi Laura F. Klein and Lillian A. Ackerman Jurisdiction Under the Major Crimes Act eds. Women and Power in Native North America, Constitutional?” 339 241 xxxi Ibid., 341-342 xvii Sarah Deer, Bonnie Clairmont, Carrie A. xxxii Sarah Deer, Bonnie Clairmont, Carrie A. Martell and Maureen L. White Eagle eds. Martell and Maureen L. White Eagle eds. Sharing Our Stories of Survival: Native Women Sharing Our Stories of Survival: Native Women Surviving Violence. 11 Surviving Violence, 13 xviii Andrea Smith Conquest: Sexual Violence and xxxiii Ross Naughton “State Statutes Limiting American Indian Genocide, 18 the Dual Sovereignty Doctrine: Tools for xix Roe Bubar and Pamela Jumper Thurman Tribes to Reclaim Criminal Jurisdiction “Violence Against Native Women” 73 Stripped by Public Law 280” UCLA Law xx Ibid., 240-241 Review 55, (2007-2008) accessed February 17 xxi Amnesty International “Maze of Injustice: 2011, 494-6 The Failure to Protect Indigenous Women http://simplelink.library.utoronto.ca/url.cf from Violence in the USA” m/342757 xxii Ann Murray Haag “The Indian Boarding xxxiv Ibid., 491-492 School Era and its Continuing Impact on xxxv Ibid., 497 Tribal Families and the Provision of xxxvi Amnesty International “Maze of Government Services” Tulsa Law Review 43 Injustice: The Failure to Protect Indigenous (2007-2008) accessed February 16 2013, 151- Women from Violence in the USA” 154 xxxvii Jennifer S. Byram. “Civil Rights on http://simplelink.library.utoronto.ca/url.cf Reservations: The Indian Civil Rights Act & m/342749 Tribal Sovereignty” Oklahoma City University xxiii Ibid., 157-161 Law Review 25 no. 1,2 (2000) accessed xxiv Sally J. Torpy “Native American Women February 18 2013, 494-496 and Coerced Sterilization: On the Trail of http://simplelink.library.utoronto.ca/url.cf Tears in the 1970s” American Indian Culture m/342760 and Research Journal 24, no.2 (October 1 2007, xxxviii Carla Christofferson. “Tribal Courts 2000) accessed February 16 2013, 1 Failure to Protect Native American Women: http://simplelink.library.utoronto.ca/url.cf A Reevaluation of the Civil Rights Act” Yale m/342753 Law Journal 101 (1991-1992) accessed xxv Ibid., 7-9 February 18 2013, 171 xxvi Ibid., 11 http://simplelink.library.utoronto.ca/url.cf xxvii Sarah Deer, Bonnie Clairmont, Carrie A. m/342761 Martell and Maureen L. White Eagle eds. xxxix Amnesty International “Maze of Sharing Our Stories of Survival: Native Women Injustice: The Failure to Protect Indigenous Surviving Violence. 11 Women from Violence in the USA” xxviii Warren Stapleton. “Indian Country, xl Judith V. Royster “Oliphant and its Federal Justice: Is the Exercise of Federal Discontents: An Essay Introducing the Case Jurisdiction Under the Major Crimes Act for Reargument Before the American Indian Constitutional?” Arizona State Law Journal 29 Nations Supreme Court” Kansas Journal of (1997) accessed February 17 2013, 337 Law and Public Policy 13, no. 1 (2003-2004) http://simplelink.library.utoronto.ca/url.cf accessed February 18 2013, 59 m/342756 http://simplelink.library.utoronto.ca/url.cf xxix Sarah Deer, Bonnie Clairmont, Carrie A. m/342763 Martell and Maureen L. White Eagle eds. xli Ibid., 60-61 Sharing Our Stories of Survival: Native Women xlii Terry Henry. “Addressing Violence Surviving Violence, 13 Against Native American Women and Girls xxx Warren Stapleton. “Indian Country, as a Human Rights Issue” 1 Federal Justice: Is the Exercise of Federal

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xliii Angela Gebhardt, Jane Woody. “American Indian Women and Sexual Assault: Challenges and New Opportunities” Affilia: Journal of Women and Social Work 12, Bibliography No. 3 (August 2012) accessed February 18 2013, 238-240 Amnesty International. "Maze of Injustice: doi:10.1177/0886109912452642. The Failure to Protect Indigenous xliv Sarah Deer, Bonnie Clairmont, Carrie A. Women from Violence in the USA." Martell and Maureen L. White Eagle eds. Amnesty International Publications Sharing Our Stories of Survival: Native Women (2007), accessed December 20, 2012, Surviving Violence, 19 http://www.amnestyusa.org/our- xlv Angela Gebhardt, Jane Woody. work/issues/women-s- “American Indian Women and Sexual rights/violence-against-women/maze- Assault: Challenges and New Opportunities” of-injustice 241 xlvi Renya Ramirez “Race, Tribal Nation and Bubar, Roe and Pamela Jumper Thurman. Gender: A Native Feminist Approach to "Violence Against Native Women." Belonging” Meridians: Feminism, Race, Social Justice 31, no. 4(98) (2004): Transnationalism 7 no. 2 (January 1 2007) 26/01/2013-70-86. accessed February 19 2013, 22 http://www.jstor.org.myaccess.library doi:10.2979/MER.2007.7.2.22. .utoronto.ca/stable/29768276 xlvii Andrea Smith Conquest: Sexual Violence and American Indian Genocide, 138-139 Byram, Jennifer S. "Civil Rights on xlviii Renya Ramirez “Race, Tribal Nation and Reservations: The Indian Civil Rights Gender: A Native Feminist Approach to Act & Tribal Sovereignty." Oklahoma Belonging” 27-28 City University Law Review 25, no. 1,2 xlix Andrea Smith Conquest: Sexual Violence and (2000): February 18 2013-491-509. American Indian Genocide, 2 http://simplelink.library.utoronto.ca/ l Renya Ramirez “Race, Tribal Nation and url.cfm/342760 Gender: A Native Feminist Approach to Belonging” 28 Christofferson, Carla. "Tribal Courts Failure li Luana Ross “From the “F” Word to to Protect Native American Women: Indigenous/Feminisms” Wicazo Sa Review A Reevaluation of the Civil Rights 24, no.2 (October 2009) accessed February Act." Yale Law Journal 101, (1991- 19 2013, 43 doi:10.1353/wic.0.0041 1992): February 18 2013-169-185. lii Ibid., 45 http://simplelink.library.utoronto.ca/ url.cfm/342761

Deer, Sarah, Bonnie Clairmont, Carrie A. Martell, and Maureen L. White Eagle, Sharing our Stories of Survival: Native eds. Women Surviving Violence . Tribal Legal Studies, edited by Gardner, Jerry. Plymouth, United Kingdom: AltaMira Press, 2008.

Gebhardt, Angela and Jane Woody.

"American Indian Women and Sexual

Assault: Challenges and New

Opportunities." Affilia: Journal of

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